Page 1 of 6 123 ... LastLast
Results 1 to 10 of 56

Thread: LCWRA Back Payment Universal Credit

  1. #1
    New Member
    Join Date
    Nov 2019
    Posts
    19

    LCWRA Back Payment Universal Credit

    Hello all,

    I have been on Limited Capability for Work payments before and last time I got a back payment of quite a few months as I was providing fit notes for over a year before I got an assessment. I was on limited capability to work from December 2016 until August 2018, at which point I was taken off after a review. I asked for a mandatory review but then didn't appeal after that which I now regret as I don't believe I should have been taken off.
    It was December before I started providing the DWP with fit notes again and in August they finally got around to sending me the assessment form out which I filled in and sent back. I had my assessment some time later and was deemed to have limited capability for work and work related activity.
    Today I received a message in my journal saying that I would get the new amount from next month. When I questioned about a back payment I was told that I wasn't due any. They said that I was deemed capable for work between when I got taken off last August (2018) to this August (2019) which is when I returned their questionnaire.
    The decision letter that I received 2 weeks ago said "The extra money is awarded from 3 months after the date you first gave us evidence of your health condition or disability, unless an exception applies."
    I thought that would mean 3 months after I first gave them a fit note which make it March 2019, as I started giving them fit notes in December 2018. So surely it should be backdated until then?
    They said that my fit notes don't count because they are for the same condition that I had before they took me off LCW last year. Surely this can't be right, can it?
    Is there any chance that they are wrong about this and that I can get it backdated?

    Thanks.

  2. #2
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    8,977
    Because you were previously found FFW (and didn't appeal) then this would have been counted as a brand new claim for Limited Capability.

    That means that there is a waiting preiod of 3 UC assessment months following the end of the month in which you first supplied evidence of being unfit for work (fit notes), which is what the decision letter said.

    Normally I would agree that that should be from December 2018 when you first started supplying fit notes again, which would make it starting in April not March 2018 and your first LCWRA payment at the end of April's monthly period.

    However the question of the fit notes being for the same condition as previously is interesting.

    With ESA then unless you were making a new claim for a different condition, or could show that your existing condition had deteriorated, then you would not be paid ESA assessment rate at all, you would have had to claim JSA whilst waiting for the ESA decision.
    (Regulation 30.(2)(b)(i) of the 2008 ESA regulations).
    So you would not be entitled to any ESA at all until you had had an assessment and decision, and there would be no backpay.

    However I can't find any such regulation/clause in the 2013 Universal Credit regulations.
    It's probably been ommited because UC replaces both ESA and JSA so you would simply continue to be paid the standard UC rate anyway.

    There are a few mismatches like this when it comes to UC limited capability legislation.
    They have decided that a certain clause in ESA legislation is not needed with UC - forgetting all of the subtle ramifications of omitting that clause.

    Because of the lack of a corresponding regulation in UC then I would say that LCWRA should indeed be backpaid from the begining of April.

    Their saying that it only applies from when you returned the UC50 is an obvious nonsense, it's either 3+ months from when you first supplied fit notes or from when the date the decision was made, not some point in between.

    I suspect that UC are wrongly using the ESA rules when they should not be doing so for UC. (To try and save money).

    You could start by asking them what exact regulation they are relying on to refuse the backpay from April.
    (But don't expect a coherent answer, - maybe expect no answer at all, UC are good at ignoring questions they can't answer).

    If you want to challenge this then you are going to need help from a good local advisor, and may need to take it to tribunal.
    Unfortunately that's the way things are with the DWP and UC decisions at the moment, everythings a fight even to get information out of them.

    At least you have LCWRA ongoing, and any argument over backpay will not affect that.

    (PS. I feel an FoI request coming on asking about what UC regulation applies in this situation, I'll have to think carefully about the wording to use).
    Last edited by nukecad; 23-11-19 at 16:44. Reason: ESA subclause corrected to (i)
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  3. #3
    New Member
    Join Date
    Nov 2019
    Posts
    19
    Thanks for your detailed answer.

    Looking again at some of the replies in my journal, they are saying that this claim is starting from the day I was re-referred which was the beginning of August. That was the date that they got around to actually sending me the questionnaire. It was probably a week or two later when I returned it. I did say that it wasn't my fault that they had waited 8 months from the date I started supplying fit notes to the date they re-referred me but that fell on deaf ears.
    They said that "If a medical assessment outcome is that you are fit for work, we would not accept anymore fit notes for that condition." So in the period between August 2018 and August 2019, any fit notes that I supplied them don't count if they are for the same condition because they declared me fit for work. Surely fit notes from my GP should confirm that they had made the wrong decision, not that they were right and fit notes from my GP should be ignored.

    Anyway, the exchange I had with them finished with them telling me that I could ask for a mandatory consideration which I intend to do. I have called the local welfare rights people who weren't of much use to be honest. They told me to contact Citizen's Advice so I will pay them a visit this week.

    When you mention needing a local advisor, would you say that Citizen's Advice is the right place to go for this?

  4. #4
    Senior Member
    Join Date
    Dec 2014
    Posts
    1,681
    Am wondering if your circumstances are covered by the following legislation:

    https://www.legislation.gov.uk/ukdsi.../regulation/41

    particularly 41 (4b)

    Perhaps Nukecad will kindly take a look and give his thoughts.

    Citizens Advice may be able to help, particularly if they have a benefits specialist.

    Alternatively you could put a note on your journal and ask under which legislation they have made this decision and see what they come up with.
    I try my best

  5. #5
    New Member
    Join Date
    Nov 2019
    Posts
    19
    Thanks for this.

    Looking at this you certainly make a good point about 41 (4b). I suppose it wouldn't hurt to ask them via my journal which legislation they used although I don't want to get in over my head as I'm not too good at deciphering legal jargon.

    Hopefully Citizen's Advice do indeed have a benefits specialist that can be of some help.

  6. #6
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    8,977
    Quote Originally Posted by jon100 View Post
    Looking again at some of the replies in my journal, they are saying that this claim is starting from the day I was re-referred which was the beginning of August. That was the date that they got around to actually sending me the questionnaire.
    Nonsense again, the legislation clearly states from when you first started providing medical evidence.
    (I have seen them try that one before, I'll see if I can find it again and what happened).

    Quote Originally Posted by jon100 View Post
    They said that "If a medical assessment outcome is that you are fit for work, we would not accept anymore fit notes for that condition." So in the period between August 2018 and August 2019, any fit notes that I supplied them don't count if they are for the same condition because they declared me fit for work.
    As said above that is the law with ESA, but there does not seem to be any equivalent regulation in the UC legislation.
    Although I could be wrong and have missed something (I don't think so though), which I why I advised asking them exactly what regulation they were relying on when making that statement.
    I they can't/won't answer it's almost certainly because there is no legal basis for what they are saying.

    Quote Originally Posted by jon100 View Post
    When you mention needing a local advisor, would you say that Citizen's Advice is the right place to go for this?
    CAB seem to be a bit hit and miss at the moment, some are doing a brilliant job others are mediocre at best.
    It may be because CAB is in 2 parts, some offices are professionals some offices are volunteers, or it may just be funding cuts again.
    You can find local advisors by putting your postcode in here: https://advicelocal.uk/find-an-adviser

    The link that Pmlindy gives is some of the legislation that I looked at last night.

    UC Reg 41.(4)(b) does say that they should not carry out a new assessment unless there has been a change of circumstances from the previous FFW.

    It says nothing about when a claim for Limited Capability is dated from if they do carry out a new assessment, so the standard 'first supplied medical evidence' applies.

    The difference is that the ESA reg says that you can make a new claim and have a new assessment, but won't be paid ESA until that assessment is done and a decision made - The ESA legislation has a specific clause about that, ESA Reg 30.(2)(b)(i) - UC does not have any such equivalent clause.

    The UC regs simply say that you can't have a new assessment unless you have a change of circumstances.

    But they have accepted that 41.(4)(b) doesn't apply in your case - because they have given you a new assessment.
    (I'm assuming that the condition stated on your fit note didn't change? That might give them a get out).
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  7. #7
    New Member
    Join Date
    Nov 2019
    Posts
    19
    That's right, the condition stated on my fit note hasn't changed.

    I'm wondering how I should word it when asking which regulation they were relying on when they made the decision. Do I simply ask: "Can you tell me which part of the Universal Credit regulations did you refer to when you decided not to backdate my payment?"

    Or would you word it differently?

    Thanks

  8. #8
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    8,977
    Let me think about that.

    I'm drafting similar for an FoI, but it's a bit more awkward because you can't ask questions in those you have to request existing information.

    Which can be tricky when the whole point is that the regulation does not exist in the first place.

    It's like this backdating question - backdating should exist because there is no regulation to stop it existing.
    But that also means that there is no regulation that you can point to to make your case.
    Which is why stuff like this ends up at tribunal, until someone gets it to Upper Tribunal and it becomes case law. (At which time the DWP change their guidance).
    Last edited by nukecad; 23-11-19 at 17:54.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  9. #9
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    8,977
    LOL - I've just realised that the DWP are sneakily training me to be a para-legal.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  10. #10
    New Member
    Join Date
    Nov 2019
    Posts
    19
    Haha, yes.

    Going on what you have told me so far, it seems that they may be making it up as they go along to some extent, which gives me hope that if I do pursue it then I might get somewhere.

Similar Threads

  1. universal credit + lcwra
    By kat123 in forum News and general discussion
    Replies: 5
    Last Post: 24-09-19, 18:24
  2. Help with Universal Credit LCWRA
    By Lauraxs in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 7
    Last Post: 01-05-19, 09:52
  3. Is it possible to change from LCW to LCWRA on Universal Credit
    By FibroClaimant in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 1
    Last Post: 27-09-18, 12:40
  4. Universal Credit LCWRA advice
    By Pau in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 9
    Last Post: 06-01-18, 20:28
  5. Universal Credit & LCWRA
    By biosphere in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 3
    Last Post: 15-09-16, 19:04

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •