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Thread: LCWRA Back Payment Universal Credit

  1. #11
    Senior Member nukecad's Avatar
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    Quote Originally Posted by jon100 View Post
    Going on what you have told me so far, it seems that they may be making it up as they go along ....
    Yes, they are if they can get away with it.

    They seem to believe that they can interpret the law to mean whatever they would prefer it to say rather than what it actually says.
    And a lot of the time they get away with it - for a while at least.

    That's why they lose around 70% of appeals, (ESA, PIP, and now UC).

    It's also why they have lost so many High Court cases and Judicial Reviews in recent years, and have then had to spend more money reviewing their incorrect decisions and paying thousands owed in backpayments.

    But there are still many thousands of people who have lost out on smaller decisions because they believed what they had been told.
    Not everything makes it to the upper courts.

    TBH that's more a symptom of Government policy rather than the DWP itself.
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  2. #12
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    Wow I had no idea they lose 70% of appeals. That's huge.

    Should I be putting in a request for mandatory reconsideration right away? What is the time limit to do so, do you know?

    Should I ask about which part of the regulation they relied on when they made the decision not to backdate before I ask for a mandatory reconsideration, or after?

  3. #13
    Senior Member nukecad's Avatar
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    Quote Originally Posted by jon100 View Post
    Wow I had no idea they lose 70% of appeals. That's huge.
    They try to keep it quiet, and when pushed say something like "it's only 9 or 10% of all claims made" - thus including all those that never get to tribunal at all.

    They publish the tribunal figures quarterly, the latest are from June 2019: https://www.gov.uk/government/collec...als-statistics
    Of the disposals made by the SSCS Tribunal, there were 39,000 (73%) cleared at hearing, and of these 71% were found in favour of the customer (up from 67% on the same period in 2018). This overturn rate varied by benefit type, with ESA and PIP at 75%, Disability Living Allowance 67% and Universal Credit 65%. ESA and PIP have driven the overall increase in the overturn rate, both having risen four percentage points on April to June 2018.
    Quote Originally Posted by jon100 View Post
    Should I be putting in a request for mandatory reconsideration right away? What is the time limit to do so, do you know?

    Should I ask about which part of the regulation they relied on when they made the decision not to backdate before I ask for a mandatory reconsideration, or after?
    You normally have 30 days from the decision to ask for an MR, that can be extended if there is 'Good Reason'. (Guess who decided if the reason is good enough?).

    There are currently problems with MRs in UC; which are being raised with government and it will probably end up in court, (again).
    For now we have to work with things as they stand, so the advice is to put it on your Journal and phone them as well.
    Not everyone has problems, but.......
    You may find this interesting, it has a few examples of what you may come across if you are unlucky: https://www.rightsnet.org.uk/forums/viewthread/15269/
    Post #3 there is about backdating of disability components, it even has a PDF of the stupid, unhelpful, reply the DWP sent.

    If you do get something like that then don't worry too much, it's a decision letter which then lets you lodge an appeal with the tribunal.
    (Even though it implies that it isn't an MR decision letter it is).

    The DWP seem to have added an extra stage in UC reconsiderations with no legal basis whatsoever - so that even if you specifically ask for MR they do a 'non-mandatory' reconderation first and then say that you can ask for MR, which is what you already did in the first place.
    (We think that it has something to do with the fact that UC case managers can now make some 'simple' decisions on their own without refering it to a Decision Maker, again something that has no real basis in law).

    You can ask them to specify the regulation they are relying on as part of the MR, but as you can see from that rightsnet link and the example letter don't expect an explanation until you take it to tribunal.
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  4. #14
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    Thanks very much for your help so far. It's been a great help.

    I've called up to ask for a mandatory reconsideration. They told me that because I'd been declared fit for work in August 2018 then they wouldn't accept any more fit notes for that same condition up until August 2019.

    I told them that they had obviously made the wrong decision to take me off LCW in August 2018 and that although the condition was still the same on my fit notes, it had actually worsened and I believe that it should be backdated to December 2018 when I first started putting fit notes back in again for this.

    I am going to wait for the outcome of this mandatory reconsideration before I contact Citizen's Advice or any of the other advice sources from the link that you provided me with.

    At least now the ball is rolling and I can see a way forward with this and the direction I want to take it in. Hopefully the mandatory reconsideration will go my way but I doubt that very much and I will probably have to take it to a tribunal.

  5. #15
    Senior Member nukecad's Avatar
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    They never think it through before giving these stupid answers.

    When you do think about it their latest decision clearly shows that they also must think that your condition had worsened since your last assessment.
    If it hadn't worsened then the WCA decision should have been the same in both assessment.
    Either the previous WCA decision was wrong, or your condition had worsened since - they can't sensibly have it both ways. (But the'll try).
    They are effectively arguing against themselves.

    Personally I'd go for it on them using the wrong legislation, but that's probably coloured by the fact that I would enjoy seeing them squirm when they had to admit (in court) that they are using the wrong legislation (again), and making up their own rules that don't comply with the law (again).
    Last edited by nukecad; 25-11-19 at 15:15.
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  6. #16
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    Yes, as you say they've effectively already conceded that my condition is worse as I was only on LCW last time and this time I am on LCWRA. I'm hoping that they take this into account when making the mandatory reconsideration. The guy on the phone couldn't point to which part of the legislation they used. He just said the bit about not accepting fit notes for the same condition within a year of being declared FFW. I'll just have to await the outcome now. I could be waiting a while.

  7. #17
    Senior Member nukecad's Avatar
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    Quote Originally Posted by jon100 View Post
    The guy on the phone couldn't point to which part of the legislation they used.
    Because as said above there isn't any for UC, they are using ESA legislation and wrongly applying it to UC in the hope that no one notices.
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  8. #18
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    Then this is the line I will take if it goes to a tribunal. It looks like my best chance of success.

  9. #19
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    I've had a reply to my mandatory reconsideration and unsurprisingly they have upheld the decision. Here is what they have said:

    "On checking the departmental system you previously attended a work capability assessment on
    the 23/07/2018 and you were found fit for work and you were not entitled to the LCW element
    from 15/08/2018 a Mandatory Reconsideration was made on the 04/10/2018 and the decision
    was upheld.
    On 05/12/2018 you submitted a statement of fitness for work from 05/12/2018. Although you
    provided medical evidence you are still required to look for work and you continued to provide
    medical evidence. On 20/02/2019 you were considered for a referral for a work capability
    assessment and you were referred on the 02/08/2019, a questionnaire was sent to you on the
    04/08/2019 and a reminder was sent on the 26/08/2019.
    Although you provided medical evidence from 05/12/2018 this was for the same condition as
    before and it is your responsibility to report any deterioration in your health condition and you
    continued to look for work during this time and you did not enquire about a Work Capability
    Assessment.
    Taking all this into consideration it is correct that your Limited Capability For Work Related
    Activity is paid from 02/08/2019.
    UC regulations state that a relevant period of three months beginning on the first day on which
    you provide medical evidence of Limited Capability for Work and Work-Related Activity
    (LCWRA) must be served.
    An award of UC is not to include the LCWRA element until the beginning of the assessment
    period that follows the assessment period in which the relevant period ends.
    You were awarded LCWRA from 02/08/2019. This means that your relevant period is from
    15/08/2019 to 14/11/2019. Your assessment period begins on the 15th of each month. This
    means your LCWRA award will begin to be paid in the assessment period 15/11/2019
    14/12/2019
    I have also reviewed the exceptions to the relevant period, under regulation 28 of Universal
    Credit Regulations 2013, and found that none of these apply to your circumstances.
    Outcome of Reconsideration
    Therefore, I am unable to revise the decision dated 22/11/2019 awarding you the Limited
    Capability for Work and Work-Related Activity element of Universal Credit from 02/08/2019, for
    which a relevant period must be served.

    The law used to make this decision
    Welfare Reform Act 2012 c. 5 regulations 12, 19 and 37
    Universal Credit Regulations 2013 regulations 27, 28, 39, 40, 41 & schedules 6, 7, 8 and 9
    The Employment Support Allowance (Decisions and Appeals) Regulations 2013 regulations 5,
    7, 8, 40
    Social Security Act 1998 Sections 8 - 10
    Social Security Administration Act 1992"



    So having taken me off LCW I provided them with fit notes for the same condition as it hadn't improved. They are saying that it is my responsibility to report a deterioration yet that is the exact point of a fit note, is it not?
    Then they have noted that I didn't ask for a WCA during the immediate period after I started providing fit notes. I didn't know I was supposed to be asking for one. They said that I was considered for a referral for a WCA in February yet it took them until August to grant one and this is the date they are now deeming it to start from, through no fault of mine.

    To me something seems very off here. Do you think I still have a case or are they on solid ground here?

  10. #20
    Senior Member nukecad's Avatar
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    I think that they are trying to baffle you with bullshit.

    Read again the line that starts "UC regulations state that a relevant period...".

    There is nothing it that regulation about 'evidence' having to be for a new or worsened condition.
    As said before they are trying to apply an ESA regulation to UC - they can't legally do that but they'll try.

    I'll take another look at the bull****, and those dates, when I get back to a computer.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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