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Thread: LCWRA Back Payment Universal Credit

  1. #31
    Senior Member nukecad's Avatar
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    I agree, they are using the wrong regulations to save a little bit of money each time.
    Those little bits off each applicable claim soon add up to millions.

    But for each individual claim they hope it won't be noticed or if it is then the person wronged can't be bothered to take it further.

    Look at the SDP/migration thing - that is back in the High Court for the third time now by the same two claimants.
    Simply because the Government/DWP want to save money and won't fully implement what the HC ruled in the first place.

    That will also probably be why CAB don't want to get involved.
    They can see that if you persue this it may be a long battle.
    And as it won't affect as many as the SDP thing does others may also not feel it worth their resources.

    There are many benefit issues that DWP get away with simply because no one has the resources to challenge everything that's wrong so have to prioritise the bigger ones.
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  2. #32
    Senior Member nukecad's Avatar
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    Quote Originally Posted by nukecad View Post
    Out of interest, yesterday I go a reply to my FoI request about this matter of LCWRA backpayment in UC.
    As expected it was totally useless, giving links to the wrong guidance, 2 MP's briefing papers (not guidance), and a UC regulation that does not apply.
    (Incompetence or a deliberate attempt to misslead and fudge things? From previous FoI's I've done I strongly suspect the latter).
    I've given them a blasting and requested an internal review.
    I've now had a reply to my request for internal review.
    https://www.whatdotheyknow.com/reque...lcwlcwra_in_un

    This has now given the correct guidance; but it still does not point to anything that could, in law, support their decision not to backpay LCWRA to 3 months after you first supplied evidence.
    I've added an annotation referring to this thread (but not linking it):
    The latest reply (and information from elsewhere) confirms what was suspected.

    In cases where a claimant has been previously been found Fit-for-Work the DWP are not following legislation on the Relevant Period for Limited Capability in UC.
    In such cases they are starting the relevant period only when they issue a UC50, and not when the claimant provides medical evidence of limited capability as stated in the legislation.

    There is no provision in the UC legislation for starting the relevant period only when they issue a UC50, the relevant period is only/always linked to when evidence of Limited Capability is first provided.
    There is nothing in the legislaton that states this must be evidence of a new or worsened medical condition, that conditionality only applies to whether to refer for assessment or not, accordingly once they do refer then the relevant period starts when ME was first provided.
    Whilst this may be an oversight the UC legislation as written stands until revised, ammended, or modified by case law.

    The case that prompted this FoI has now been through MR (decision to refuse to backpay LCWRA upheld) and the MR decision letter clearly states that the DWP have (incorrectly) used the 2013 New Style ESA regulations to make this UC decision.
    That case is now going to the appeal tribunal.
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  3. #33
    Senior Member nukecad's Avatar
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    IMPORTANT

    I've been doing some more research and there is something odd about the ESA regulation quoted on the MR letter.

    To start with it actually has relevance to UC, if you give it the correct name which they hadn't.

    What they call on the MR letter- "The Employment Support Allowance (Decisions and Appeals) Regulations 2013 regulations 5,7,8,40"
    Would appear to actually be - "The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013"
    https://www.legislation.gov.uk/uksi/.../contents/made

    Sorry for missing that shortened title, it threw me off track, but it's not too late to have caught it.

    Of the regs quoted:
    Reg 5 is about revision of decisions (MR).
    Reg 7 is about revisions before appeal.
    Reg 8 says the SoS can revise a decision at anytime.
    Reg 40 is about determining Limited Capability for Work.

    So it appears that they have used correct legislation after all, (just gave it an incomplete name), but none of that says anything about backdating payments of the LCWRA element.

    Payment of LCWRA is only covered by regulation 28 of the UC Regulations 2013 which says the relevent period is 3 months following the end of the assessment period in which you first supply fit notes.

    So you should not be appealing on the fact that they have used ESA regulations in error.

    Instead you need to argue the fact that none of the regulations that they have used changes or overrules regulation 28 of The Universal Credit Regulations 2013 - which states the relevent period is 3 months following the AP where you first provide evidence of being unfit.

    Further argue that there is nothing in reg 28 to say that this has to be evidence of a new or worsened condition.
    The regs the have used are only about whether to assess or not. Which is not in doubt as they have already carried out the assessment.


    (You could also bring up the fact that at no time did you provide evidence of a new or worsened condition and that your fit notes have always said the same thing?)

    It would have been easier to argue your case at tribunal if they had used the wrong legislation altogether, but they have still used the wrong parts of the right legislation, parts that don't apply to backdating of the LCWRA element in UC but only to whether to assess.
    Last edited by nukecad; 09-01-20 at 02:45.
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  4. #34
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    Quote Originally Posted by nukecad View Post
    IMPORTANT

    I've been doing some more research and there is something odd about the ESA regulation quoted on the MR letter.

    To start with it actually has relevance to UC, if you give it the correct name which they hadn't.

    What they call on the MR letter- "The Employment Support Allowance (Decisions and Appeals) Regulations 2013 regulations 5,7,8,40"
    Would appear to actually be - "The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013"
    https://www.legislation.gov.uk/uksi/.../contents/made

    Sorry for missing that shortened title, it threw me off track, but it's not too late to have caught it.

    Of the regs quoted:
    Reg 5 is about revision of decisions (MR).
    Reg 7 is about revisions before appeal.
    Reg 8 says the SoS can revise a decision at anytime.
    Reg 40 is about determining Limited Capability for Work.

    So it appears that they have used correct legislation after all, (just gave it an incomplete name), but none of that says anything about backdating payments of the LCWRA element.

    Payment of LCWRA is only covered by regulation 28 of the UC Regulations 2013 which says the relevent period is 3 months following the end of the assessment period in which you first supply fit notes.

    So you should not be appealing on the fact that they have used ESA regulations in error.

    Instead you need to argue the fact that none of the regulations that they have used changes or overrules regulation 28 of The Universal Credit Regulations 2013 - which states the relevent period is 3 months following the AP where you first provide evidence of being unfit.

    Further argue that there is nothing in reg 28 to say that this has to be evidence of a new or worsened condition.
    The regs the have used are only about whether to assess or not. Which is not in doubt as they have already carried out the assessment.


    (You could also bring up the fact that at no time did you provide evidence of a new or worsened condition and that your fit notes have always said the same thing?)

    It would have been easier to argue your case at tribunal if they had used the wrong legislation altogether, but they have still used the wrong parts of the right legislation, parts that don't apply to backdating of the LCWRA element in UC but only to whether to assess.
    Thanks for doing this research, it is very helpful.

    I have only just read this post and have already put in my appeal form to the tribunal. Fortunately I took a screenshot of the wording I used and it looks like I have worded it in such a way that will fit in with your recommendation on which way to argue my case.

    In the section "Reasons for appealing - What you disagree with" I said: "I was awarded LCWRA from 02/08/2019 which is the date that DWP decided that I needed an assessment and sent me the questionnaire. Universal Credit legislation states that this should be backdated to 05/12/2108, which was when I started supplying DWP with fit notes from my GP about my condition. DWP are refusing to backdate it and I want to dispute this as I believe that they are not applying the relevant legislation correctly in my case."

    Maybe in hindsight I would have worded it differently but I can't change it now so I will have to wait until I get a response. They have 1 month to respond.

  5. #35
    Senior Member nukecad's Avatar
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    That wording looks fine to me.
    The tribunal court are not expecting a claimant to be familiar with regulation numbers, or the ins and outs of 'relevent date', etc. especially not at the initial appeal stage.
    TBH it's their job to sort out those ins and outs and what the legislation/law actually means, rather than what the DWP would like it to mean.

    Remember that is only your initial reason for lodging an appeal, you have the chance to make a more detailed argument once you have the DWP's 'Court Bundle' which will set out their case for not backdating.
    It will probably be the same as already given in your MR letter, but could/should give more details of exactly what they are relying on.

    Also remember that once the DWP get notice of your appeal from the court they (someone senior) will take a much closer look at their decision again in order to write their court bundle.
    Whilst rare, it is not unknown for them to revise their decision once they have had another, closer, look.

    The last thing to bear in mind is that courts can and do make strange decisions at times, so nothing is ever guaranteed.
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  6. #36
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    That's good to know. I did try to keep my reason for appeal brief and to the point without going into too much detail, so hopefully it's enough to have my appeal accepted.

    If and when it is accepted then I'll think about contacting Citizen's Advice again and taking them up on their offer to refer me to Welfare Rights for representation, although I will happily represent myself if I have to.

    It would be great if they did revise their decision but I'm not banking on it. I'll wait and see what the DWP comes back with and then take it from there.

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