Date of LCW&WRA; element and lapsed Tribunal appeal

Claim made for UC on 26.03.19, fit notes provided from day 1. WCA decision made on 18.12.19, no LCW. Revised at MR to LCW only on 23.05.20. Appealed to Tribunal. On 17.08.20 the decision was further revised by UC to award LCW&WRA; and Tribunal appeal lapsed. No mention of any dates in this letter. However, the LCW&WRA; element was subsequently only backdated to March 2020.  Who knows why.

Upon requesting backdate to AP4 of claim (month commencing 26.06.19) UC has replied that: “We cannot pay the LCWRA element from further back. A decision maker has decided the date to pay it from bearing in mind when health conditions were supported and when evidence was provided and also there is a period of 91 days at the start of LCWRA where there is no additional payments, the amount is therefore correct.”

There has not been any particular change in health conditions and we have no idea what is meant by ‘when health conditions were supported and when evidence was provided.’  The case concerns a mother with a terminally ill baby who was in hospital from birth in 2018 who died in Jan 2020.

Am I right in thinking that I just need to reinstate the lapsed tribunal appeal to resolve this?  Or is there some other decision which would need to be MR/Appealed to do with the date of the LCW&WRA; element?

The initial WCA can only result in a decision which is operative from day 1 of AP4. The decision that you are appealing is the original decision on the WCA which would take effect from AP4. That decision appears to have been revised on 23/05/20 to LCW only. The revision could only have been on the basis of the facts at the date of the original decision (18/12/19).

The next event could be one of two things - it could be a further revision of the original WCA decision which would need to be on the basis of the facts as they were on 18/12/19 or it could be a supersession on the basis of a worsening of circumstances. I think its at least a possibility that the DM was attempting to conduct a supersession as this is consistent with the idea that the claimant’s health may have worsened following the death of their child.

One of two things must be true though.
(A) The decision under appeal has been revised, in which case the appeal has lapsed - but the new decision is incorrect because the wrong operative date has been chosen, in which case the remedy is to file a new appeal. Or
(B) The decision maker has conducted a supersession effective from March 2020. This would be a valid thing for the DM to do, but it would not lapse the appeal because it is not a revision. The appeal would continue in relation to the fixed period from AP4 up tothe effective date of the superseding decision.

Thanks Elliot. The letter of 17.08.20 is titled “Revision Letter” and states that “I am revising the decision of 23.05.20 that you do not have Limited Capability for Work Related Activity.”  So, as you say it could be an attempt at a supersession but described as a revision. However, there is no particularly logical reason why the 23.05.20 date has any significance in this other than it was the date of the MR letter.

I think that they have probably further confused themselves by applying the 91 day no LCWRA element from the date of the original decision on 18.12.19, rather than the date of the claim in March 2019, hence only awarding it from March 2020.

Edited whilst I think about it.

Been trawling social media lately, and I’ve seen a few of these cases where when DWP are either revising prior to appeal or after the appeal are implementing the decision from a date later than when notified of health issue and still add on 3 months. On challenge they give a similar nonsensical statement to above, about 91 days etc.
Not sure if there is any commonality to these cases.

This has finally been resolved after the appeal was reinstated, a Work Coach referred it for another MR (!) and eventually it wound its way to a ‘Complex Decision Maker’. If it takes a Complex DM to work out the date the LCWRA element is payable in a straightforward claim, something is going a bit amiss with the administration of this simplified benefit…

There must be people who don’t have access to advice losing out all over the place.