Is “treated as” a determination?

We’ve got someone who’s been in hospital for ages yet no WCA has been carried out due to generous occupational sick pay preventing them being assessed.

Should their being treated as LCW caused a determination such that the assessment could have been carried out by virtue of reg 41(1)(b) ?

And are we going to have problems getting the LCWRAE included due to reg 28(2)(a) where the WCA was only triggered several months after the UC award was made?

I suppose we could argue that the provision of the med10/med3 was an application for the LCWRAE to be included but I’d expect to have to scrap about that.

My thinking is that a “treated as” decision counts as a determination in the same way as any other WCA-informed decision - it’s certainly appealable in the same way… I’m not sure if that determination in itself would trigger the assessment process though, not without some other report of a change in circumstances.

I’m not sure about backdating the LCWRA. I suspect the DWP can only make one determination at a time i.e. either start the relevant period/trigger a WCA or count claimant as ‘treated as’. So, when they were notified of your client’s admission into hospital, they decided that he is ‘treated as’ having LCW and that status persists until such time as a new determination is made. Was there a subsequent report of change in circs that could count as an application for LCWRA to start the ‘relevant period’?

Would need a very close reading of the regs to double check all this, of course!

“Should their being treated as LCW caused a determination such that the assessment could have been carried out by virtue of reg 41(1)(b) ?”

I don’t think reg 41(1) is stopping your client from getting an assessment. Either the ‘treated as’ determination is not a determination whether a claimant has LCW or LCWRA and the assessment could go ahead under reg 41(1)(a), or the ‘treated as’ determination is a ‘previous determination’ and the SoS may carry out an assessment under reg 41(1)(b) as long as she ‘wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s condition or whether that determination was made in ignorance of or was based on a mistake as to, some material fact’. I think 41(b) is likely to apply, so the SoS could carry out an assessment if it were not for reg 41(2).

It is reg 41(2) that is stopping your client from getting an assessment. They have monthly earnings above the threshold, so the SoS may not carry out an assessment unless they (a) are entitled to a disability benefit, or (b) the SoS wants to review a previous determination that the claimant has LCW / RA that was made on the basis of an assessment under Part 5 of the UC Regs, or Part 4 or 5 of the ESA Regs.

Your client could only be referred for an assessment if exception ‘a’ or ‘b’ apply. I assume you client isn’t entitled to a disability benefit. Looking at ‘b’, their treated as LCW determination was not made on the basis of an assessment, it was based on a determination outside of the assessment process (Reg 39 differentiates between a determinations resulting from an assessment under Sch 6 and a treated as determination under Sch 8). Therefore, it looks like no exception applies allowing an assessment to take place.

“And are we going to have problems getting the LCWRAE included due to reg 28(2)(a) where the WCA was only triggered several months after the UC award was made?”

I don’t see how you will be able to get an LCWRA determination, unless they can be treated as having LCWRA, so I don’t think the effective date of LCWRA element is at issue currently.  (Sorry, edited this answer after my original post!).

I know this is slightly different but i put a note in the journal asking for the dm to make a determination on lcwra based on evidence provided that they should be ‘treated as’ having lcwra (in my case due to having chemo.

They make the determination and the work allowance should kick in straight away and if lcwra it still is the 3 month mark.

Hope this makes sense

In a ‘treated as’ case such as being in hospital (LCW) or having chemo (LCWRA), there is no need for an assessment, so earnings shouldn’t be a problem. DWP can be terrible at understanding this, but sounds like it was ok in your case Kizza.

But if Dan’s client who is in hospital long term is treated as LCW, but doesn’t have a treated as LCWRA situation, then the reason they can’t have an assessment probably is because of earnings. If they could gain entitlement to PIP, that would solve the problem wouldn’t it Dan? (even if PIP isn’t payable due to the hospital stay, entitlement itself can start).

For what it’s worth, I don’t think there is a determination in a treated as having LCW due to being in hospital case (due to the way reg 39(1)(a) and (b) are drafted - ‘determined’ only appears in (b)). So I don’t think they can use reg 41(1)(b).

If they can have a WCA (eg by getting PIP entitlement) then the next hurdle will be convincing DWP of that (another point they sometimes get wrong!), & then I can’t see any reason they can’t get LCWRA from the AP after 3 months of medical evidence as usual.

WillH - 16 August 2024 10:30 AM

For what it’s worth, I don’t think there is a determination in a treated as having LCW due to being in hospital case (due to the way reg 39(1)(a) and (b) are drafted - ‘determined’ only appears in (b)). So I don’t think they can use reg 41(1)(b).

 

Great point. I hadn’t noticed the absence of the word ‘determined’ in 39(1)(b). I guess that means they would ordinarily use 41(1)(a) to get an assessment. But 41(2) still blocks the assessment due to earnings, unless they have entitlement to a disability benefit. So yeah, looks like a PIP claim may be in order.