What date

Hi all,

Looking for some advice on this, and if UC are correct or not.

Client had a WCA and was awarded LCW 29/05/2021.

15/11/23 cl referred for a WCA as DWP say - ” On 15 November 2023, you were referred for a new WCA due to the prognosis on your previous LCW decision having now been served. As you were referred due to the prognosis on your previous LCW
decision having been served rather than due to declaring a change in health conditions, the
decision to award you LCWRA is classed a review decision.”

Client has WCA on 23/05/24 and LCWRA assessed

UC include the LCWRA element from 11/06/24

Client asked UC to consider the effective date as 15/11/23, which is when they began the process to supersede the earlier decision

UC response is

“As the decision to award you LCWRA is classed as a review decision, the law states that the
effective date of the award cannot be any earlier than the date of the decision, unless you have
shown a deterioration in an existing condition or declared a new condition.”

Are they correct?

I would say yes they are correct.  Your client has had 2 WCAs.  There has been a supersession of the first decision based on a change of circumstances.  That change is the new WCA from May.  I presume your client’s condition has worsened and awarded LCWRA from May (the date of the second WCA).

Shabir

Many thanks, yes it seems Reg 26 and not Reg 23 of the D&A might apply.

One thing that might help the client is when they sent her the UC50 she did provide a lot of evidence that clearly shows she was worse, which they agreed when they got around to doing the WCA, so it seems unfair.

Anyway client has appealed so you never know, nothing to lose.

The DM needs to decide whether reg 23 or 26 is the appropriate basis to supersede. You are not stuck with reg 26 just because it is a DWP instigated review.

Your client will want to argue that it was a change of circs and not (say) just a change of HCP opinion on similar facts so that reg 23 is more appropriate than reg 26.

The effective date is then either when the change happened (if reported in time), when it was reported (if a late report) or when action to supersede commenced.

If your client has referred to their changed circumstances in the UC50, I don’t see why that can’t be the report and I have successfully made this argument a number of times.

Some argue - more ambitiously - that the WCA is action with a view to supersession so you can go back to the start of the process. I think this is probably wrong, but your client can argue the alternatives.

Claimants are often being short changed by automatic reliance on reg 26 but the cases need closer consideration.

Cheers Elliott, that is more my thought on it, the more I think about it.

Ta.

There were a number of UT decisions on it around 2016-2018 for further reading but I am on my phone right now and can’t pull them up.