Memo DMG 25/11
 
ESA - PAYMENT OF WRAC
 
Contents     Paragraphs
Introduction 1 - 2
Background 3 - 4
The Upper Tribunal decision 5 - 6
Action for Decision Makers
New claims 7 - 8
Repeat claims 9 - 11
Exceptions 12 - 14
Decision making and appeals 15 - 17
Annotations  
Contacts
 
INTRODUCTION
1      This memo gives guidance on a recent decision¹ by the UT about the conditions of
entitlement to the WRAC.

1 S of S for Work and Pensions v PT (ESA) [2011] UKUT 317 (AAC); CE/52/11
2      A claimant who has, or is treated as having, LCW is entitled to the WRAC if

1.      the assessment phase has ended and
2.      they do not have LCWRA
3.      they satisfy such conditions as may be prescribed1.

The UT decision relates to how the second condition is satisfied.

¹ WR Act 07, s 2(3) & 4(5)

BACKGROUND
3      The claimant was entitled to ESA(IR) including the WRAC. His entitlement ended
when he started F/T work. The job finished after only a week, and the claimant made a
new claim for ESA. It was accepted that he was a WTB. However, the WRAC was not
paid pending the WCA, and the claimant returned to work before this could be carried
out.

4      The claimant appealed against the decision awarding ESA on the grounds that he
should be entitled to the WRAC. The appeal was allowed by the FtT. The Secretary of
State’s subsequent appeal to the UT was dismissed.

THE UPPER TRIBUNAL DECISION

5      The UT Judge considered that the provisions about WTBs¹ were not relevant to the
question of whether the WRAC was payable. He held that, unless and until a person
has been assessed as having LCWRA, they do not have LCWRA. It is not necessary
to wait for an assessment of LCWRA.

¹ ESA Regs, regs 148 - 150

6      For the purposes of entitlement to the WRAC, the DM therefore only needs to
consider the condition relating to the ending of the assessment phase¹. In a case
where

1.      the PLCW links to a previous PLCW and
2.      the rule in paragraph 2 1. does not apply² (see DMG 44636 2.)
the claimant is therefore entitled to the WRAC from the outset.

¹ WR Act 07, s 2(3)(a) & 4(5)(a); ² s 2(4) & 4(6); ESA Regs, reg 7(1)(b)

ACTION FOR DECISION MAKERS

New claims
7      Most new claims are not affected by the UT decision, because the assessment phase
ends
1.      at the end of the 13th week of entitlement or
2.      when LCW has been determined

whichever is later¹. As LCWRA is usually assessed at the same time as LCW, the
conditions of entitlement for the WRAC cannot be satisfied until the WCA is carried
out.

¹ ESA Regs, reg 4

8      However, where a claimant is treated as having LCW¹ other than where a WCA is
pending2, it may be possible to award the WRAC before the WCA is carried out.

¹ ESA Regs, reg 20, 25, 26 or 33(2); 2 reg 30

Example
Jessie is in hospital following surgery, and is awarded ESA from 9.8.11. The DM treats
her as having LCW. She is referred for a WCA on 6.9.11. By this date Jessie is home,
recovering from her operation. The WCA has still not been carried out by the 14th
week of entitlement. The DM supersedes the decision awarding ESA to award the
WRAC from 8.11.11.

Repeat claims

9     Where
1.      a repeat claim is made and
2.      the claimant has, or is treated as having, LCW and
3.      the PLCWs link¹ and
4.      the previous entitlement was for more than 13 weeks

the claimant is entitled to the WRAC as in paragraphs 10 - 11 depending on whether
the assessment phase had ended in the previous PLCW . This applies whether or not
the claimant is treated as having LCW pending a WCA, and whether or not the
claimant was awarded a component during the previous PLCW.

Note: See paragraphs 12 -14 for when this guidance does not apply.

¹ ESA Regs, reg 145(1) & (2)

 
Assessment phase ended in previous PLCW

10 Where
1. the PLCWs link and
2. the assessment phase had ended in the previous PLCW and
3. the claimant has, or is treated as having, LCW in the current PLCW

the claimant is entitled to the WRAC from the first day of entitlement to ESA, even if
the WCA has not been carried out¹.

¹ ESA Regs, reg 7(1)(b); SS CS (D&A) Regs, reg 3(5F)

Example
Dai’s entitlement to ESA began on 21.3.11. Following application of the WCA, the DM
determines that Dai does not have LCW, and his ESA entitlement is terminated from
8.8.11. The making of the LCW determination ends the assessment phase. Dai makes
a further claim to ESA from 19.9.11 with evidence of a new health condition. The DM
treats Dai as having LCW, and as the assessment phase had ended in the previous
linked PLCW, awards ESA including the WRAC from 19.9.11.

Assessment phase not ended in previous PLCW

11 Where
1. the PLCWs link and
2. the assessment period had not ended in the previous PLCW and
3. the previous period or ESA entitlement was more than 13 weeks and
4. the claimant has, or is treated as having, LCW in the current PLCW
the claimant is entitled to the WRAC from the first day of entitlement to ESA, even if
the WCA has not been carried out¹.

¹ ESA Regs, reg 7(1)(b); SS CS (D&A) Regs, reg 3(5F)

Example
Sally’s entitlement to ESA terminates after 21 weeks when she starts F/T work. The
WCA had not been applied before the ESA award ended. Sally makes a further claim
to ESA six months later providing doctor’s statements. The DM finds that she is a
WTB, treats her as having LCW, and awards ESA including the WRAC from the first
day of entitlement.

Exceptions

12     Paragraph 9 does not apply where
1.      the repeat claim is made within six months of a determination that the claimant
does not have, or is treated as not having, LCW and
2.      the claimant cannot be treated as having LCW pending the WCA¹.

This is because until LCW is determined, the claimant does not satisfy a basic
condition of entitlement to ESA2. See DMG 42206 - 42207 for guidance on where a
claimant cannot be treated as having LCW.

¹ ESA Regs, reg 30(2)(b); 2 WR Act 07, s 1(3)(a).

Example

Fabio is entitled to ESA including the WRAC. His entitlement is terminated on 17.8.11
following referral for a WCA review, after he fails to return the questionnaire without
good cause. He makes a further claim for ESA on 5.9.11, but does not submit the
questionnaire with his claim. Fabio cannot be treated as having LCW, and the WRAC
is not payable.

13     Paragraph 9 does not apply where the claimant
1.      is a WTB¹ and
2.      was entitled to the support component in the previous PLCW.

These claimants are treated as having LCW and LCWRA until the WCA is carried
out2, and are therefore entitled to the support component from the first day of
entitlement (see DMG 42313 - 42322 and 44636).

1 ESA Regs, reg 148; 2 reg 149 & 150

14     Paragraph 9 does not apply where the claimant is treated as having LCWRA before
the WCA is carried out¹. The claimant is entitled to the support component from the
first day of entitlement (see DMG 42364 and 44636).

¹ ESA Regs, reg 35(1)
 

Decision making and appeals

15     The UT Judge’s decision is a relevant determination¹. Any decision made before the
date of the determination (28.7.11) cannot be revised for official error².

¹ SS Act 98, s 27(1); ² SS CS (D&A) Regs, reg 1(3) & 3(5)(a)

16     A decision which is erroneous in law as a result of the relevant determination can be
superseded effective from 28.7.11¹.

¹ SS CS (D&A) Regs, reg 6(2)(b) & 7(6)

17     Where a decision is the subject of an appeal to the FtT, and the question of whether
the WRAC is payable is an issue in the appeal, the DM should bring the UT Judge’s
decision to the FtT’s attention.

ANNOTATIONS

Please annotate the number of this memo (Memo DMG 25/11) against the following
DMG paragraphs:
42351 main heading, 44636.

CONTACTS
If you have any queries about this memo, please write to Decision Making and
Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such
referrals should be followed, as set out in Memo DMG 14/11 - Obtaining legal advice
and guidance from DMA Leeds.
DMA Leeds: September 2011