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MR of ESA - refused benefit but DWP agree LCW?
- louisemunro
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7 years 4 months ago #203653 by louisemunro
MR of ESA - refused benefit but DWP agree LCW? was created by louisemunro
As appointee for my son I applied for MR of the refusal of ESA on the basis he is a disabled full time student and that he should have been awarded points for the activities in the WCA.
The MR notice notes I asked for reconsideration on both these issues. It only deals with the activities issue, not the student issue, and says the DM was correct to award no points.
It then has a curious paragraph I don't understand -
'It has been stated that you have limited capability for work. Whilst we accept that this may be the case at the present time, the limited capability for work assessment is not a job specific test or an assessment of whether a person can perform their own normal work. It is a test of a person's ability to perform everyday functions and activities.'
This seems to be saying that the DWP accept my son has LCW at present but the decision says he does not have LCW and thus no benefit?
The MR notice notes I asked for reconsideration on both these issues. It only deals with the activities issue, not the student issue, and says the DM was correct to award no points.
It then has a curious paragraph I don't understand -
'It has been stated that you have limited capability for work. Whilst we accept that this may be the case at the present time, the limited capability for work assessment is not a job specific test or an assessment of whether a person can perform their own normal work. It is a test of a person's ability to perform everyday functions and activities.'
This seems to be saying that the DWP accept my son has LCW at present but the decision says he does not have LCW and thus no benefit?
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- Gordon
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7 years 4 months ago #203655 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic MR of ESA - refused benefit but DWP agree LCW?
Lamx
I've had a word with the Office about your situation and we believe that the DWP are applying the law incorrectly! Whilst they should have carried out an assessment of your son's capabilities this should have been limited to his meeting the criteria for the Support Group only and they should have accepted that the legislation prescribes that he has Limited Capability for Work and should be automatically placed in the WRAG.
As this is a question of the law rather than whether he meets the criteria for the WRAG, I think you need to get face to advice, do an internet search for "welfare advice" with your postcode, town or county.
The relevant Regulations are
ESA Regs 2008
Reg 33(2) for automatic LCW assessment (by being a student in receipt of DLA/PIP).
Reg 21(3) to confirm no need to collect any information to determine LCW.
www.legislation.gov.uk/uksi/2008/794/contents/made
Gordon
I've had a word with the Office about your situation and we believe that the DWP are applying the law incorrectly! Whilst they should have carried out an assessment of your son's capabilities this should have been limited to his meeting the criteria for the Support Group only and they should have accepted that the legislation prescribes that he has Limited Capability for Work and should be automatically placed in the WRAG.
As this is a question of the law rather than whether he meets the criteria for the WRAG, I think you need to get face to advice, do an internet search for "welfare advice" with your postcode, town or county.
The relevant Regulations are
ESA Regs 2008
Reg 33(2) for automatic LCW assessment (by being a student in receipt of DLA/PIP).
Reg 21(3) to confirm no need to collect any information to determine LCW.
www.legislation.gov.uk/uksi/2008/794/contents/made
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- louisemunro
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7 years 4 months ago #203704 by louisemunro
Replied by louisemunro on topic MR of ESA - refused benefit but DWP agree LCW?
Thanks Gordon. Despite repeatedly drawing their attention to it, I haven't managed to get the DM to consider my son as a full time disabled student - the MR notice says nothing on that point.
I haven't managed to get any helpful face to face advice - my local CAB have told me my son isn't entitled to ESA and don't seem aware of the disabled student exemption to be found to have LCW.
I will be appealing the decision. My son is emphatic he will not go to a tribunal - anxiety issues - he found the WCA stressful enough. So it loooks like I will have to have the case decided on the papers. I know oral hearings have a better success rate, but as this hinges on a point of law hopefully a paper 'hearing' won't be a disadvantage.
I haven't managed to get any helpful face to face advice - my local CAB have told me my son isn't entitled to ESA and don't seem aware of the disabled student exemption to be found to have LCW.
I will be appealing the decision. My son is emphatic he will not go to a tribunal - anxiety issues - he found the WCA stressful enough. So it loooks like I will have to have the case decided on the papers. I know oral hearings have a better success rate, but as this hinges on a point of law hopefully a paper 'hearing' won't be a disadvantage.
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