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Thread: Being paid WRAG rate after week 13 but not had assesment yet?

  1. #1
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    Being paid WRAG rate after week 13 but not had assesment yet?

    Has anyone ever heard of this?

    I've come across a couple of examples on the internet.

  2. #2
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    there is no law that says you can get it,but there have been a couple of cases won and lost at appeal for it.
    the arguement is that if you have had an assessment before week 13 the dwp can make you wait as long as they like before giving you a decision and therefore the increased amount, which would be paid once there is a decision.
    on the other side of the arguement its if you havent had an assessment after 13 weeks that you should automaticly get the increase until a decision is made,to give it or not
    but in order to get either involves appealing

  3. #3
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    I wrote a fairly detailed exploration of this recently, but think it got lost via a mobile phone glitch.

    There is no power in law to pay main phase ESA, which includes the Work Related Activity Component or Support Component, unless the claimant has Limited Capacity for Work. In some cases, it is possible to ascertain a claimant has LCW without an assessment, but an assessment is needed in most cases.

    If an assessment determines the claimant has LCW more than 13 weeks into the claim, the ESA decision is superseded to include the Work Related Activity Component or Support Component from the beginning of the 14th week. This supersession will trigger a payment of back money.

  4. #4
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    Quote Originally Posted by Flymo View Post
    I wrote a fairly detailed exploration of this recently, but think it got lost via a mobile phone glitch.

    There is no power in law to pay main phase ESA, which includes the Work Related Activity Component or Support Component, unless the claimant has Limited Capacity for Work. In some cases, it is possible to ascertain a claimant has LCW without an assessment, but an assessment is needed in most cases.

    If an assessment determines the claimant has LCW more than 13 weeks into the claim, the ESA decision is superseded to include the Work Related Activity Component or Support Component from the beginning of the 14th week. This supersession will trigger a payment of back money.
    Surely 13 weeks is quoted somewhere (Welfare Reform Act?) or it w

    It clearly states on the ESA website https://www.gov.uk/employment-suppor...what-youll-get that you'll be put into one of the groups after 13 weeks.

  5. #5
    glasgowadviser
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    Quote Originally Posted by gbhxu View Post
    Surely 13 weeks is quoted somewhere (Welfare Reform Act?) or it w

    It clearly states on the ESA website https://www.gov.uk/employment-suppor...what-youll-get that you'll be put into one of the groups after 13 weeks.
    people should be assessed at or around that time. unfortunately there is no way to get a component added if the assessment hasn't been carried out by that point.

    a few tribunal judges did accept the argument that the wrag component should be added if the medical hadn't been carried out but this isn't correct in my opinion (legally, not morally) and I think caselaw recently confirmed this to be the case.

  6. #6
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    Quote Originally Posted by gbhxu View Post
    Surely 13 weeks is quoted somewhere (Welfare Reform Act?) or it w It clearly states on the ESA website https://www.gov.uk/employment-suppor...what-youll-get that you'll be put into one of the groups after 13 weeks.
    Entitlement to the components is governed by the Welfare Reform Act 2007. For contributions based ESA, it's section 2(2) for the Support Component and section 2(3) for the Work-Related Activity Component. For income related ESA, it's section 4(4) for the Support Component and section 4(5) for the Work-Related Activity Component. Sub-section (a) of each of these provisions requires the assessment phase to have ended before the component is awarded, though sections 2(4)(a) and 4(6)(a) of the 2007 Act make provision for the ESA Regulations to exempt certain people from the assessment phase.

    The rules for the end of the assessment phase are found in regulations 4 to 6 of the Employment and Support Allowance Regulations 2008 (SI 2008/794). Exemption usually occurs via regulation 5, the linking rule for those reclaiming ESA after a break, but the usual position is that the claimant must have been determined to have Limited Capacity for Work (usually by scoring 15 points on the Work Capacity Assessment) and, for the Support Component, Limited Capacity for Work-Related Activity (usually by satisfying one of the Schedule 3 descriptors) before the component is awarded.


    DWP's practice is to use their discretion under sections 2(4)(b) and 4(6)(b) of the 2007 Act to backdate entitlement to the components to the beginning of the 14th week if the determination of Limited Capacity for Work comes after the 14th week. In practice, this means that the assessment phase lasts no longer than 13 weeks. DWP Decision Maker's Guide paragraph 44647 refers.

    In simple terms, you cannot insist on being paid the Work-Related Activity Component from the 14th week of a new ESA claim because DWP and ATOS have yet to compete the Work Capacity Assessment - you stay on the assessment phase rate until the assessment is concluded. If you are subsequently placed in the Work-Related Activity Group or the Support Group, you get the main phase money backdated to the 14th week.


    I adopt glasgowadvisor's position - I am all but certain it is legally incorrect for the Work-Related Activity Component to be paid before the assessment phase is complete. If a few First-tier Tribunal decisions ruled otherwise, those decisions only have effect on that single case, and do not set a precedent - in any event, I would expect DWP to appeal those decisions to the Upper Tribunal.

    If the Upper Tribunal or the courts have made a ruling (I will try to remember to check, but haven't time to do so at the moment), that decision is binding on DWP and all cases before the First-tier Tribunal.

  7. #7

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