Delay / refusal to carry out WCA
JR93 Refusal to accept claim for new style ESA as claimant has insuff NI contributions (gatekeeping) & not treating as claim for LCW National Insurance Credits (last updated Sept 2020). This letter assumes the claimant is a student, receives PIP, and has an appointee. If other eligibility for ESA is disputed please contact [email protected].
Note, if cbESA has been claimed as a route to UC for a disabled student- new regulations provide that for claims for UC made on or after 15 December 2021 in order to be able to get UC whilst 'receiving education', the claimant must have LCW on a date before starting to receive education. The intent is to close off the so-called 'workaround' of someone already receiving education applying for ESA (and getting LCW) before applying for UC. The explanatory memorandum to the regulations states:
'2.1 The purpose of this instrument is to amend one of the exceptions to the requirement to not be receiving education which determines entitlement to Universal Credit (UC). This amendment provides that a person who is entitled to attendance allowance (AA), disability living allowance (DLA), child disability payment (CDP) or personal independence payment (PIP) must have been determined to have limited capability for work (LCW) before the person starts undertaking a course of education.
2.2 This amendment closes off a ‘workaround’ whereby an existing disabled student makes a claim to new-style (contributory) employment and support allowance (NS ESA) in order to be referred for a work capability assessment (WCA) so that, if the person is subsequently determined to have LCW, they could then claim and be entitled to UC - but this is contrary to the policy intent, as set out below at paragraphs 7.1 and 7.2.'
JR54 Claim refused from a student in receipt of PIP without carrying out a WCA to establish whether they have LCW (last updated Aug 2019) Leigh Day are currently litigating this issue.
ESA/UC WCA / PIP medical - home visit not offered
JR67 ESA (old style) WCA (reassessment) not done on papers and home visit not offered (last updated Jan 2022) Letter assumes ESA has NOT been terminated as a result of failure to attend
JR66 ESA (old style) WCA (reassessment) not done on papers and home visit not offered (last updated June 2020) Letter assumes ESA HAS been terminated as a result of failure to attend (so includes good cause)
Reasons for WCA decision
JR79 Generic or no reasons provided for UC WCA decision - frustrating appeal rights (last updated July 2020)
JR80 Generic or no reasons for ESA WCA - frustrating appeal rights (last updated July 2020)
Treating as LCWRA (cancer treatment / termninal illness)
JR48 Failure to action DS1500 (including requiring to wait for and / or attend a WCA) (last updated Jan 2022)
PLEASE TELL US HOW DWP/HMRC/RELEVANT LOCAL AUTHORITY RESPOND
By emailing [email protected]
This helps us keep the letters up to date and effective for other advisers.