The DWP has issued new guidance (Memo DMG 27/14) about repeat referrals for the work capability assessment (WCA), where the claimant has been successful in an appeal. As before, when a repeat WCA is to be applied is not a matter of law, and so is not in itself a potential subject of appeal to the First-tier Tribunal. However, the guidance, described here by Simon Osborne, provides some very useful pointers in advising claimants as to what they can expect.
The independent review of the WCA for year four (conducted by Dr Paul Litchfield) included recommendations to:
- apply any tribunal recommendations on review periods (ie, time before repeat WCA) as the default and should only be altered where there is ‘strong justification’ (recommendation 14); and
- consider a minimum period between a successful appeal decision and a recall notice for a subsequent WCA, unless there were good grounds for an earlier review (recommendation 15).
The guidance in essence adopts both of those recommendations, and says that in practice the recommendations should be considered ‘together and not in isolation’.
Applying the tribunal’s recommendations
Regarding recommendation 14, the guidance says that the decision maker should ‘apply the recommendation of the First-tier Tribunal as to when the next WCA should take place, from the date of the original decision unless the First-tier Tribunal specifies otherwise.’ So, for example, where the claimant claimed employment and support allowance (ESA) in March 2014, was successful at an appeal in June 2014 with a recommendation from the tribunal of a repeat WCA in 12 months, the repeat WCA should be (according to the guidance) in March 2015. However, had the tribunal indicated that the repeat WCA should be 12 months from the date of the hearing, it would be scheduled for June 2015.
Regarding recommendation 15, the guidance says that ‘the Department believes that an eight-month period is suitable as a minimum review period between a successful appeal hearing and a subsequent WCA unless the First-tier Tribunal has recommended a longer review period’. That would mean, in general (and where the tribunal has not recommended a longer period) a recall notice being issued after six months inviting a claimant to attend a WCA. Also, if the tribunal recommends a review period in excess of the eight month minimum, the decision maker ‘should abide by that recommendation’.
As in the example for recommendation 14, the default position is that the tribunal’s recommendation is applied from the date of the original ESA decision, unless the tribunal specifies it is from the date of its decision. Even so, the basic guidance is again that there should usually be a minimum eight months between the successful appeal and the repeat WCA.
The guidance adds that ‘there may be circumstances where it will be reasonable to request that the claimant has another WCA within a shorter time than the minimum period of eight months’. An example is given of where there may have been a change of circumstances affecting the claimant’s health since the original decision, and the decision maker may ‘wish for a claimant to have another WCA in order to assess the situation’.
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