What defines a "Work Capability Assessment"?

Hi,

I'm having a bit of a dispute with DWP (again) about an old ESA work capability decision (WRAG) which they never formally notified me of in 2012.

I've been reassessed thrice, but the second reassessment was carried out based on the paperwork only (my ESA50 questionnaire) with no face to face assessment.

DWP argue that this did not legally constitute a Work Capability Assessment as there was no face to face assessment, and as such they did not have to provide a formal decision notification. They contend that there was no WCA outcome, as I was already in the WRAG prior to the assessment, and the scrutiny assessment on the paperwork led to no change of that decision. The underlying message is that DWP claim that the face to face assessment is the WCA, and without it, no WCA has taken place.

Are they right that (legally) a WCA is only really a WCA if a face to face assessment is involved? Doesn't really make sense to me - my argument is that they still made an assessment on my capability for work, albeit on the paperwork only - as they kept me in the WRAG - hence I still underwent a WCA. I am of the opinion that our WCA starts from the moment we receive an ESA50, rather than when we attend a face to face assessment, but DWP doesn't agree.

I was moved to the SG a year later following another reassessment that did involve a face to face assessment, but that is irrelevant to this argument.

Jonathan wrote: Hi,

I'm having a bit of a dispute with DWP (again) about an old ESA work capability decision (WRAG) which they never formally notified me of in 2012.

I've been reassessed thrice, but the second reassessment was carried out based on the paperwork only (my ESA50 questionnaire) with no face to face assessment.

DWP argue that this did not legally constitute a Work Capability Assessment as there was no face to face assessment, and as such they did not have to provide a formal decision notification. They contend that there was no WCA outcome, as I was already in the WRAG prior to the assessment, and the scrutiny assessment on the paperwork led to no change of that decision. The underlying message is that DWP claim that the face to face assessment is the WCA, and without it, no WCA has taken place.

Are they right that (legally) a WCA is only really a WCA if a face to face assessment is involved? Doesn't really make sense to me - my argument is that they still made an assessment on my capability for work, albeit on the paperwork only - as they kept me in the WRAG - hence I still underwent a WCA. I am of the opinion that our WCA starts from the moment we receive an ESA50, rather than when we attend a face to face assessment, but DWP doesn't agree.

I was moved to the SG a year later following another reassessment that did involve a face to face assessment, but that is irrelevant to this argument.

Hi J,

The Works Capability Assessment (WCA) is the whole process of assessing whether you have LCW, and where you have LCW, (WRAG) whether you also have LCWRA. (SG)

The WCA may or may not include a face to face "medical" assessment.

Just because a face to face does not take place does not mean that the WCA has not taken place.

It is quite clear from ESA Regulation 23. 2008 :

"Claimant may be called for a medical examination to determine whether the claimant has limited capability for work

23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination."

From :

www.legislation.gov.uk/uksi/2008/794/regulation/23/made

From :

www.legislation.gov.uk/uksi/2008/794/contents/made

ESA Reg 23. states that a claimant "may be called" and not that they "must be called", for an ESA WCA to have taken place.

If a fresh determination was made as a result of this WCA on paper scrutiny alone, even if it kept you in The WRAG, then that decision should have been notified to you in writing.

If not, then you have been denied the right to appeal/challenge the fresh decision made as a result of the paper scrutiny.

A decision to award ESA in the WRAG (LCW) or ESA in the Support Group (LCWRA), or indeed a decision to find a claimant “fit for work” carries a right to appeal under s12 of the SSA 1998, see :

www.hmrc.gov.uk/nicmanual/volume_1/ssa_1998.pdf

Decisions which carry a right to appeal under s12 shall be notified to the claimant in writing in accordance with Reg 28 of the Decisions and Appeals Regulations 1999. See :

www.legislation.gov.uk/uksi/1999/991/regulation/28/made

Have a look at : This, also.

And The WCA Handbook.

I think that it is pretty clear that The ESA WCA does not have to include a face to face.

bro58

Hi J,

" my argument is that they still made an assessment on my capability for work, albeit on the paperwork only - as they kept me in the WRAG - hence I still underwent a WCA. I am of the opinion that our WCA starts from the moment we receive an ESA50, rather than when we attend a face to face assessment, but DWP doesn't agree."

It depends,

If this was a standard periodic reassessment instigated by The DWP, then the fresh decision made as a result of the reassessment will be active from the date of the fresh decision.

The existing award would remain in force until the date of the fresh decision.

If a reassessment/review was instigated by the claimant, any resulting decision should be active from the date that the claimant reported The Change of Circumstances. (C of C)

This could be the date of the letter sent by the claimant reporting the C of C. or at the latest, the date of the ESA50 filled in as a result of reporting the C of C.

bro58

Perfect! Thanks bro.

I probably expressed myself clumsily regarding a WCA starting from when we receive an ESA50 - I agree with what you say about the "active" date of the decision - my point was that I feel that the WCA "process" starts for a claimant when they fill in their ESA50 questionnaire, whereas DWP told me (in writing!) that the paperwork doesn't form part of a WCA, and the WCA is purely the face to face assessment.

However, as you rightly say, the actual date a decision gains effect will either be the date the decision is made in the case of a SoS-instigated review, or the date a claimant informed DWP of a change of circumstances if instigated by the claimant.

Jonathan wrote: Perfect! Thanks bro.

I probably expressed myself clumsily regarding a WCA starting from when we receive an ESA50 - I agree with what you say about the "active" date of the decision - my point was that I feel that the WCA "process" starts for a claimant when they fill in their ESA50 questionnaire, whereas DWP told me (in writing!) that the paperwork doesn't form part of a WCA, and the WCA is purely the face to face assessment.

However, as you rightly say, the actual date a decision gains effect will either be the date the decision is made in the case of a SoS-instigated review, or the date a claimant informed DWP of a change of circumstances if instigated by the claimant.

Good luck J,

Keep us updated !!

bro58

Just seen this rather confusing message on GOV.UK's ESA page :

"You must go to a Work Capability Assessment while your ESA claim is being assessed. This is to see to what extent your illness or disability affects your ability to work."

The phrase "you must go" would suggest the WCA is the actual face to face assessment, which is what DWP are claiming. The word "must" also implies that it is compulsory for everyone, and doesn't suggest that a WCA can be carried out on paperwork alone, despite the plethora of empirical evidence on this forum alone which tells a different story.

I wonder if that is why DWP claim the WCA is the actual face to face assessment. This will probably have to go to a FTT to decide my case, as DWP are insisting that WCA = f2f.