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Sent for WCA after successful ESA tribunal
We are seeing a number of people who are applying for UC while waiting for ESA appeal process, then following successful ESA appeals, are being put through UC work capability process. In particular, a young man who was awarded a support group component and has been sent an UC50. Tribunal in December, UC50 in March.
My suspicion is that they are allowed to do this as UC is a separate benefit and therefore nothing can be done aside from emphasise the recent tribunal decision, complete UC50 etc etc.
Any thoughts welcomed.
there is a reg allowing transfer of the component from ESA to UC so i dont think the different benefit argument is relevant more what the law allows them to do re the decision of LCFWRA.
what the tribunal issue is guidance so not binding so there would need to be some other way to argue they shouldnt do it this soon i think…but i cant think of one.
what about them taking it through their MP as its clearly unfair on them and a waste of public money?
what the tribunal issue is guidance so not binding
The tribunal issued a decision which decided for all purposes the previous ESA claim. it said nothing about a separate benefit
unless there is a reg saying that UC has to apply that decision in the UC claim, the tribunal decision has no effect on the UC claim at all. It will, however, be good ammunition to use in his UC claim in persuading UC that there shouldn’t be another medical (especially if tribunal was clear about how long the condition will last and such like) and then on to MR etc as required.
But certainly contacting MP would be a good plan as well.
Just to be clear: has he been receiving the support component in his UC, including any arrears due? See the example at M6316:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/598412/admm6.pdf
The ADM guidance says WCA decisions under ESA, including those made later by tribunals, can carry through into the UC award without the need for a new assessment.
However, the department is free to reassess you on whatever schedule it pleases, within reason. There are no fixed-term awards.
To be honest, 3 months from final hearing to start of next assessment wouldn’t strike me as unusual, unless you have particularly short wait times for hearing dates in your area.
If the claimant has an obviously static condition which will not improve, then they should really have set a long review date, but if they don’t then that is not appealable.
what the tribunal issue is guidance so not binding
The tribunal issued a decision which decided for all purposes the previous ESA claim. it said nothing about a separate benefit
unless there is a reg saying that UC has to apply that decision in the UC claim, the tribunal decision has no effect on the UC claim at all. It will, however, be good ammunition to use in his UC claim in persuading UC that there shouldn’t be another medical (especially if tribunal was clear about how long the condition will last and such like) and then on to MR etc as required.
But certainly contacting MP would be a good plan as well.
reg 19 allows transer of the LCFW determination to UC http://www.legislation.gov.uk/uksi/2014/1230/regulation/19
the bit i was mentioning in relation to guidance was the “recommend they dont be re-assessed” part. i think they can do that if they really want to but it doesnt strike me as a particularly usefull waste of resources (but then when has that ever stopped them).