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Thread: Work Capability Assessments are NOT Mandatory - UTT Ruling.

  1. #1
    Senior Member nukecad's Avatar
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    WCAs are NOT Mandatory - UTT Ruling.

    In an interesting Upper Tribunal ruling on the 21st Feb 2020 the judge has found that a 'Failure to Attend' an ESA assessment (WCA) is not sufficent cause to allow the DWP to stop the claim, or to stop paying ESA.

    This could be interesting for anyone currently fighting a 'Failure to Attend' decision. (And may even have consequences for previous decisions?).

    It follows a recent similar ruling about PIP assessments, and quotes heavily from that PIP ruling.

    https://assets.publishing.service.go...26_2018-00.pdf

    The 'Reasons' as set out in the ruling are a bit complicated/convoluted, but hinge mainly on the fact that in that particular case the DWP never produced a copy of the appointment letter to the FTT.

    However it then goes on to further consider the fact that the 'Invitation' to attend a WCA is not strongly worded enough to make it mandatory.
    And neither is anything else in any other DWP document.

    I won't quote the reasons here as that would get too long, but for those interested look in particular at paras 77 & 78, 90 through 100, and 102 & 103.

    Paras 104 through 112 are also very interesting.
    They give the judges opinion that as the DWP clearly state that a WCA is not a 'medical examination' then it casts doubt that the SoS can even require a claimant to attend a WCA.
    The ESA legislation only gives the SoS power to call a claimant to a 'medical examination', and the DWP clearly state that a WCA isn't a medical examination.

    The remainder is also interesting and I will quote the final paragraph, with the original emphasis.
    (I've not put it in a quote box as that would lose the italics).

    "124. In any event, the claimant cannot have “known” that she was under a legal
    obligation to attend for examination because—for all the reasons I have given above—
    she was not under any such obligation. The letter she was sent invited her to attend for
    examination. She would not have been doing anything wrong, or acting unreasonably, if
    she had accepted that invitation. But she did not do so. No legal consequences follow
    from that omission because it was no more than that: an omission. She did not fail to
    attend for examination because she was never under any legal obligation to do so."



    PS. Expect an appeal from the DWP.
    Last edited by nukecad; 18-03-20 at 11:05.
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  2. #2
    I didn't think they were mandatory in the sense the claim would stop. I never attended one back in 2013, it was paper based. I did get put into the work group and was told I had to attend the Job Center. When I refused they threatened to stop my money, which I couldn't even care about as I was in such a state. I appealed through the mandatory reconsideration, providing more information and was placed in LCWRA. Maybe things have changed since then.

    It's good to know people who just can't attend due to pain, illness, anxiety etc can maybe tell them no, then explain to the DWP why they didn't attend without losing their claim. If they offered telephone interviews, while traumatic, can still provide information as it isn't a medical examination anyway.

    And yes I expect them to appeal, as always.

  3. #3
    Senior Member nukecad's Avatar
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    That's all about not attending face to face ESA assessments, not paperbased assessments. (and nothing to do with attending the jobcentre for work focused interviews).

    Although it does also have similar implications for the (not) sending back of ESA50s and UC50s they can do an assessment without those anyway.

    They aren't doing any F2Fs at the moment because of Corvid 19, but even if they were I would not advise anybody to simply refuse if invited to one.

    You still have to treat WCA's as mandatory for now because the DWP will certainly still be treating them as mandatory, even if that UTT ruling says otherwise.

    That ruling is just the first heavy salvo from the courts in what is going to be an ongoing battle with the DWP.

    The DWP don't like being told that they have been doing something unlawful for years, (especially if it might cost them money).
    The courts don't like the DWP making their own rules up and ignoring the law.
    So it will end up in escalating court appeals until the DWP finally have to admit they need to change things. Which will take a few years.
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    Oh boy, they will be appealing this for sure, the DWP come down on you like a ton of bricks for failure to attend.

    I had one of these some years back, and my thread on the old website got quite famous, my MP also got involved. In my case I never got the appointment letter, I also didnt get the why did you attend letter, but someone posted an opened letter through my door on a sunday which was the ESA termination letter, which was terminated because I didnt attend my WCA. No payments could be made if I appealed as the rules are stricter vs a FFW decision.

    The DWP when I tried to reason with them treated me with contempt, but when they failed to read out my address to my MP over the phone, they were at that point on the back foot, however they still initially declined the reconsideration even with my MP as evidence, but when I submitted the appeal documents, citing two previous UTT decisions which went against the DWP they did finally back down, but they made some weird reason for backing down and wouldnt admit to any of the stuff they got wrong.

    I expect the reason they are very strict on this is of course to make people scared into attending their WCA. So this will for sure be appealed as otherwise it will open the flood gates for people not attending WCA's.

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    Senior Member nukecad's Avatar
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    Well this didn't end up in an escalating battle in the courts.

    The DWP have simply changed the wording of the letters, and the ESA50/UC50, to say that they are mandatory.

    That gets round the court ruling for now.
    (But it doesn't address the Judges thoughts that WCAs are not mandatory anyway because they are not a 'medical examination').
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    Do you think the gov will change the law to make ESA no longer ongoing? Then it would be like PIP, that you can choose to not be reassessed but then you wont get extended.

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    Quote Originally Posted by worried33 View Post
    Do you think the gov will change the law to make ESA no longer ongoing? Then it would be like PIP, that you can choose to not be reassessed but then you wont get extended.
    Unlikely, but given the current government's utter contempt for legacy benefit claimants, I wouldn't rule anything out.

  8. #8
    Senior Member nukecad's Avatar
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    Quote Originally Posted by worried33 View Post
    ... that you can choose to not be reassessed but then you wont get extended.
    You can't choose not to be reassessed for ESA.
    (Well you can, but that would end your ESA altogeter).

    The temporary situation this thread was about has been been resolved by rewording the letters - and so WCA's are mandatory again.

    If you do not attend, or cooperate, with a WCA (or don't send back an ESA50/UC50) without showing 'good reason' then your ESA claim will be terminated.
    Last edited by nukecad; 23-11-20 at 21:25.
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