Renewals/ESA50 Questions

[DisturbedOne]

Hi Nukecad.
I would really appreciate any advise you could give me on this.
I have a telephone appointment coming up and I was just reading up on what to expect from it and how or what decisions are being made now, during the Covid era, when I came across your post.
I was wondering if you could clarify something from your post for me regarding them not finding claimants FFW and unless they can recommend Support Group then the decision will be postponed?
I am currently in the Support Group and after reading your post I'm wondering why I am having an appointment at all unless they can place me in the LCW Group instead of Support Group.
As you mentioned no one will have their claim stopped, I haven't read anywhere that people will not have their claim reduced. In the case of not finding claimants FFW ATM then I'm sure that's probably the reason for my appointment, to see if I still qualify for the Support Group.
If so, will my claim be altered and will I lose money if my telephone assessment does place me in the LCW Group instead, even before a F2F assessment has been done?

[nukecad]

I haven't read anywhere that people will not have their claim reduced.

It's in CHDA's own guidance to claimants which I posted a link to, and a quote from, in post #4:
https://www.youreable.com/forums/sho...l=1#post172660

It was clarified further in their internal guidance and instructions for assessors, which I didn't post because it's longer and harder to follow.
That said that only Support Group/LCWRA recommendations should be returned to the DWP, anything else CHDA had to keep.
See the next post.

I'm wondering why I am having an appointment at all unless they can place me in the LCW Group instead of Support Group.

Quite the opposite.
They have started doing some reassessments again now by telephone.
But only those that they think they can award Support Group to again, those that they can do now mean less in the backlogs to be done later.

[nukecad]

That internal guidance appears to still be current.

It clearly states that the DWP are only interested in Support Group (LCWRA) recommendations and nothing else.

I'll attach it, and a quote, for the avoidance of further doubt. (My highlighting in red).

Telephone WCA clerical (report form) guidance.
That guidance has been updated and simplified - see post #21 in this thread for the latest version.
https://www.youreable.com/forums/sho...l=1#post173247

1. Completing a Telephone Assessment Clerical ESA85/UC85

Principles

• This assessment is undertaken in order to advise on LCWRA. The outcome will therefore be LCWRA Yes with justification or LCWRA No with justification. There is no requirement to advise on LCW criteria.
• Advice on LCWRA – severe functional LCWRA and risk LCWRA should be considered
• Where the advice is LCWRA No the claimant will remain on the assessment rate.
• The DWP will not be making any Fit for Work decisions
• In all cases, LCWRA advice (LCWRA Yes or LCWRA No) will be given to the department, the only exceptions are cases that currently would be abandoned such as for reasons of claimant behaviour or distress sufficient to make continuing impossible.
• Remember the purpose is to ensure as many people as possible who are entitled to the enhanced rate of payment for LCWRA receive it.
• Unless you have robust evidence for LCWRA and prognosis, the default prognosis for LCWRA YES cases will be 6 months. However if the evidence is robust you can justify a longer prognosis. In LCWRA No cases there is no requirement to advise a prognosis.
• Only cases where the outcome is LCWRA YES will be copied on to LiMA
• Cases where the outcome is LCWRA No MUST NOT be entered on LiMA at the department’s request.

PS. When this was first issued they were only doing new claims which is why point 3 talks about 'remain on assessment rate', but the same applies if it's a reassessment - if they can't recommend Support Group (LCWRA) then you will remain on whatever your current rate is.
New claims on assessment rate, or existing WRAG (LCW), can be moved-up to Support Group (LCWRA) but nothing can go the other way.

PPS. LiMA is the computerised assessment reporting system.

[DisturbedOne]

Thank you very much Nukecad.
Apologies if my question caused you to repeat yourself, I guess after reading up for a while on this subject it gets a lil heavy on the brain for me.
It doesn't help that I now have such mistrust in the assessors and the DWP that I need to triple check and ask for clarification even when the info is staring me right in the face.
Anyway, that has been a bit of a relief so thank you again for the post.

[nukecad]

More of an expansion/more details than a repeat.

One of the reasons that I didn't post that internal guidance the first time round was that I wasn't sure how long it would stay current for.

[mrindebt]

The DWP haven't got my telephone number and they won't be getting it! The DWP are showing signs of getting restless with us as lockdown returns and the pandemic still rages. They've just toughened up the telephone assessment regime, when the pandemic started "Fail to Attend (FTA) and Fail to Participate (FTP) actions did not take place as a result of someone not attending a scheduled telephone assessment" - they just parked you on the same money until a face-to-face appt could be scheduled sometime in the future. Now they can stop your benefit if FTA/FTP.

From DWP Touchbase, 6th November 2020;

'Update - Claimants must attend telephone health assessments

When telephone health assessments were introduced for Employment and Support Allowance (ESA) and Universal Credit (UC) earlier this year, an easement was put in place so that Fail to Attend (FTA) and Fail to Participate (FTP) actions did not take place as a result of someone not attending a scheduled telephone assessment.

From Monday 2 November, ESA and UC telephone assessment appointment letters will make it clear that claimants must attend their telephone appointment. FTA and FTP action will apply, e.g. benefit may be stopped (ESA) or entitlement change (UC), for those who have been issued with this letter and fail to attend or participate in their appointments without good reason.

No one will have their support stopped without being contacted first. People will be contacted to ask them to explain why they did not, or could not attend or participate in the assessment and where good cause is provided and accepted, support will continue.

Please share this information with your members and audiences'.

[nukecad]

That's more smoke and mirrors from the DWP.

It wasn't "an easment", it was a Court Ruling that stopped them prosecuting FTAs and FTPs.

Of course the DWP don't like having to admit (again) that they have been acting unlawfully for years, so they'll give any excuse for why they weren't prosecuting FTA's and FTPs.

An Upper Tribunal judgement in February ruled that the appointment letters they were sending out were not worded strongly enough to create a mandatory obligation to attend or participate in a WCA, (or a mandatory obligation to return the ESA50/UC50).
So stopping benefits for an FTA/PTP (or failure to return the ESA50/UC50) was unlawful.

I posted about it back in March: https://www.youreable.com/forums/sho...light=unlawful

They have now reworded the standard letters (and the ESA50/UC50) to make attending/participation a mandatory requirement.

You'll note that Touchbase article says that the telephone appointment letters have been changed since 2 Nov. (To comply with that court ruling).

[DisturbedOne]

Hi again Nukecad, just a lil update on how I got on.
Well the appointment lasted about 20 mins. I've just today received my fortnightly payment, which has been cut by about £30, going to be about £60 next pay day. Rang up to enquire to the reason and was told they've moved me from SG to WRAG and I've lost all the SG components.
So it seems that they are "going the other way".
I don't see how they could reduce anyone's support without actually having seen them F2F but I'm not shocked by this.
They also suggested the next move would be a MR but I'm sure I read somewhere about them having to do away with the MR's cause of a court ruling is that right?
Any advice you might have for me would be appreciated Nukecad, thanks.

[nukecad]

The court ruling on MR's was only about failures to attend a WCA, nothing else, it doesn't apply here. (and has been resolved anyway).

I'm not sure about the reduction from SG to WRAG though.
PS. The only component/premium that should be lost is the automatic entitlement to EDP, £17.10 a week.
Along with the reduction from SG to WRAG that should mean a loss of £26.75 a week or £53.50 a fortnight.

The guidance as I posted above, and as updated on 24th August, clearly says that they are not considering anything other than Support Group awards.
But that is guidance and not law.
I'll have to see if I can find any updated guidance later than 24th August; things can change quickly under covid.

I'm not sure that a MR would change the decision, but it might well do if you quote the updated 24th August guidance at them:
dated 24th August 2020, released 13th October in answer to an FOI request.
Telephone WCA clerical (report form) guidance. - August 2020

The DWP have agreed the following advice will be provided by HCPs conducting telephone Work Capability Assessments:

LCWRA Yes or LCWRA No. (Including Risk LCWRA where appropriate).

All claimants will remain at least on the assessment rate, therefore LCW advice is not being given in this process.

No fit for work decisions will be made by DWP.

LCWRA Risk can be advised once the severe functional LCWRA categories have been found not to be appropriate.

My highlighting in red.

However that still allows the DWP to reduce an award to LCW/WRAG even though the assessors haven't "given advice" to that effect.
(In which case they have no advice from the assessors, so having the assessment was basically a waste of time).

I believe that a tribunal would almost certainly rule that they shouldn't have reduced your award without a face-to-face assessment.
That's the way I'd go - MR and then if needed appeal to tribunal, but a tribunal takes time, especially now.
A tribunal would no doubt order a face-to face assessment and probably (almost certainly) reinstate SG pending that face-to-face.

[DisturbedOne]

Thanks Nukecad. Apologies for my late reply i've been in a bit of a funk for the past few weeks, not felt up to facing all this again.
I will request an MR along with a statement of reasons and explanation for the decision and attempt to challenge it.
I was never sent a letter about the WCA, nothing that addresses the interview over the phone or their decision to put me in to the LCW group, all's i received was a letter saying they've looked at my award again and changed my payments due to reaching the maximum numbers of days i can get contribution based ESA?
This happened a long time ago I'm sure as i've been on ESA for a number of years now and in support group for 2.
Nowhere on the letter i received does it mention LCWRA or LCW or my assessment, in fact the only reason i know they've moved my grouping is that i rang them up after i noticed my payment had decreased.
I'm just going to assume i have a month from the date of this letter to put in my MR even though it doesn't address the WCA at all.