UC LCWRA appeal

tifo

I was forced to be off work in Feb 2019 due to a severe sight issue. Am still on regular hospital check ups though the time has increased. It was clear in Feb 2019 I could not work. I was giving 'unfit to work' fitnotes from Feb 2019 till Nov 2021, until the DWP made their decision and said I don't need to send them anymore. It took them 2 years 7 months to make my decision which was that i'm fit to work on the day of the assessment. They didn't look at anything else. They said that's what they need to assess, not from the date of my application in April 2019. I'm slightly better now than 3 years ago but still suffer from the eyes conditions and not able to effectively work.

In April 2019 UC asked me to complete an LCWRA assessment form. Didn't hear back about this until March 2020 when they asked me to complete another assessment form. Had a telephone assessment in May 2020 and was told they need to see me in person as can't make a decision and to wait as they don't know when due to covid. I waited until August 2021 and made a complaint to the provider, who sent me another telephone appointment for Sept 2021. I was expecting a face to face. The decision in November 2021 was that i'm fit for work on the day of the assessment. They didn't look at anything else.

I appealed within the time allowed and am waiting for the tribunal date. The DWP sent their response which was just copies of 1 assessment form from March 2020, all the evidence i'd sent and the 2 assessment reports. The 1st assessment form from April 2019 was missing and isn't referred to in the bundle. However, in the complaint response from the provider in August 2021 they gave receive dates for both assessment forms, as they were blaming DWP for all delays.

I'd sent a detailed statement for my mandatory reconsideration with quotes from relevant legislation and provider guidance (not followed).

Within the DWP bundle for my LCWRA appeal is my application form and assessment for PIP, which they also declined. Again i'd sent a detailed statement for my PIP mandatory reconsideration with quotes from relevant legislation and provider guidance (most not followed). I'd not consider this relevant because PIP is for daily living while LCWRA is for work capability. 2 very different things with different assessments. However the DWP say that if you're OK with daily living you're OK for work. They didn't include my detailed statement with evidence for the PIP mandatory reconsideration for the PIP appeal, which i'll now have to include within my LCWRA appeal bundle.

Just for info, the DWP asked me to apply for PIP in March 2021, 2 years after they asked me to apply for LCWRA. Before this, i didn't know I could apply for PIP.

Any help would be appreciated. I've not sent my bundle to the tribunal but will need to do it soon as it's nearly 5 months since my request.

tifo

I think the DWP lost the 1st assessment form from April 2019 that's why there's no note of it in their systems, though the provider seems to think it was received on a certain date.

Part of my argument is that had the DWP not lost my 1st application form in 2019 then i'd have had an assessment some 4 months later (like the PIP claim) as there was no covid in 2019. This means I would have passed the criteria for LCWRA as my eye conditions were severe and I was totally incapable of work. By losing the form and delaying with covid, the assessment 2 years and 7 months later meant DWP were in a better position to decline as I was slightly better, though not fit, and my claim was unfairly prejudiced against me.

So while I was clearly incapable of work (the work coach was very understanding) I was still subject to UC rules to look for work, only put off because of my fit notes. I still had to attend regular appointments, usually when I wasn't in a state to.

But they say it's only for the day of the assessment nothing else.

tifo

No one got any advice for me?

sammyjammy

What is your question?

JadedAngel88

The assessment is only for the day the assessment is on, what goes before or after is of no concern to dwp. I found that out too with my first assessment. 

I don't have the experience to help you but hopefully the usual board experts will assist. 

tifo

sammyjammy said:

What is your question?

I thought there's experienced people here who can give some pointers.

tifo

JadedAngel88 said:

The assessment is only for the day the assessment is on, what goes before or after is of no concern to dwp. I found that out too with my first assessment. 

Yes, i found that out too. Hence there's no use of sending any evidence to them or expecting them to look at any evidence. So it seems.

I feel I shouldn't lose out because of the DWP's mistake with my first assessment form which then led to the extra long delay. Hopefully the tribunal will feel the same.

I'm thinking nearly 3 years for an assessment is to the advantage of the DWP for people who are better on the day than they were 3 years ago. I may be wrong.

tifo

Got the WCA appeal date. Any pointers would be appreciated.

Spoonie_Turtle

I've never had to appeal and I'm less familiar with the intricacies of the WCA than with PIP, but here are my gut instincts:

Don't be distracted by PIP.  Tribunals do not confuse them, they will only be looking at the WCA criteria.  Of course in overlapping areas you can use the same evidence but don't be preoccupied by PIP.

If things have improved during the time since you first claimed, you need to make it clear when the change happened - you are adamant you meet the criteria for LCWRA before, if that isn't still the case, when did it change to meeting the criteria for LCW?  (Rhetorical)

You say you are still unfit to work, you need to know why, which descriptors you fit.

The length of time issue is because the process was designed so that people were assessed within the first 13 weeks (assessment phase, in ESA, the waiting period in UC before LCWRA becomes payable).  So it was designed that people would be assessed on how they are at roughly the time of application and filling in the form.  That will be a lot more complicated to challenge and I really don't know enough to advise there.  

It certainly seems unfair and one would hope there must be something you could do, but I don't know what.  I don't know whether judges can award LCWRA up until X time and LCW from then based on one application.  Arguably if your sight improved to the point of no longer meeting the LCWRA criteria you should have advised them of the change to be reassessed (despite not having had the first assessment) - it's understandable why you didn't, but technically …  So, I don't know.

Do you have anyone to advise you?

Alice_Holt

https://www.advicenow.org.uk/guides/how-win-work-capability-assessment-appeal

I'd be trying to argue that you were unfit for work at the time of the assessment.

The tribunal is there to decide if the DWP decision to find you unfit for work is correct or incorrect.

They will undoubtedly sympathise with you about the extraordinary DWP delay in organising the WCA, but all the evidence they have from the DWP relates to that decision date.  
Let us know what the outcome is, and the panel's reaction to that extraordinary DWP delay.

If other forumites are experiencing such a poor DWP response in scheduling a WCA, I would suggest:
i)  Get your MP to chase up the DWP;
ii) Getting your medical records from your surgery (by way of a SAR under GDPR). This may help you to demonstrate that at the date the WCA should have been carried out, the LCWRA applied (but I'm really not sure to what extent a tribunal panel could make a ruling based on this evidence, as it's the DWP WCA decision they are looking at);
iii) Consider a pre action judicial review letter re the delay (with the help of your local advice charity): 
https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters.

Good luck.

tifo

"Don't be distracted by PIP.  Tribunals do not confuse them, they will only be looking at the WCA criteria.  Of course in overlapping areas you can use the same evidence but don't be preoccupied by PIP".

• I'm not distracted by my PIP claim, it's the DWP who've made it a part if my WCA claim in their bundle but not all documents. So i've to respond. It's good in a way because the assessment was carried out totally against the guidelines and full of things I didn't say. It also didn't look at any of my evidence. None of it.

• The DWP say that, because my PIP claim was declined, I'm OK with daily living therefore OK to work. Daily living at home and going to/from work are 2 very different things.

"If things have improved during the time since you first claimed, you need to make it clear when the change happened - you are adamant you meet the criteria for LCWRA before, if that isn't still the case, when did it change to meeting the criteria for LCW?"

"Arguably if your sight improved to the point of no longer meeting the LCWRA criteria you should have advised them of the change to be reassessed (despite not having had the first assessment)"

• I met the criteria at the time of both applications and the assessment, I still suffer from my conditions. They're for life. My eye conditions will not improve but get worse.

"Do you have anyone to advise you?"

• No, just me doing my own appeal.