Suspension of payment

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Dear Department for Work and Pensions,

I have recently read that an ESA claimant on assessment phase ESA should be treated as having Limited Capability for Work for 6 weeks after the expiration of a fit note (medical certificate) if no further medical evidence is provided.
could you tell me
1) is the above correct
2) What is legal basis for DWP suspending or withholding payment to someone who is to be treated as as having LCFW (my understanding is that be treated as having LCFW should make the claimant eligible for payment) when a fit note has expired but before the 6 week deadline has been reached.

I have also read that if a claimant remains in touch after a fit note has expired but is unable to get a new one e.g. no appointments available at GP, they can request an immediate determination of LCFW.
3) is the above correct
4) How many people have successfully made this request in the last year
5) If the answer to 3 is "yes" are people notified of this option when advised that a fit note has or is about to expire
6) For those that have made this request (assuming it's possible to do so) how long does it take on average for the "immediate" determination to take place

Yours faithfully,

Paul Malpas

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Operations FOI Requests, Department for Work and Pensions

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Dear Mr Malpas
 
Please find attached the reply to your recent Freedom of Information
request reference number VTR 5935:
 
 
 
Thank you
 
DWP Freedom of Information Team
 
 
 
 

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Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Suspension of payment'.

Thank you for your response - I am making this request for an IR as you have not answered all of my questions nor explained why you have not done so. I have done my best to understand exactly what parts of your response are answers to specific questions but it has not been easy as you have not referenced your statements (answers?) to the questions asked - some of your statements appear to be apropos of nothing.

Q1 asked if the statement I made was true - from your answer I am still not sure as you are answering a question that wasn't asked. For clarity the answer to Q1 should be either "yes" or "no".

Q2 "What is legal basis for DWP suspending or withholding payment to someone who is to be
treated as having LCFW (my understanding is that be treated as having LCFW should make
the claimant eligible for payment) when a fit note has expired but before the 6 week deadline
has been reached." - the only part of your reply that has any relevance to this question is your statement:
"Where medical evidence has expired, payment of ESA is automatically suspended until
further medical evidence is provided or until completion of a Work Capability Assessment to
determine LCW." Saying payment is automatically suspended does not explain the legal basis for the suspension, please direct me to the relevant legislation allowing DWP to take this course of action in the circumstances provided.

You have not answered Q3 (like Q1 this should be a yes or no answer) or Q5 (obviously I accept that if you answer "no" to Q3 then there is no answer to Q5) - you appear to be implying that you are not answering Q4 and Q6 under Section 12 (could you please state this if this is the case)

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/s...

Yours faithfully,

Paul Malpas

DWP freedom-of-information-requests, Department for Work and Pensions

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Paul Malpas left an annotation ()

Even by DWP standards their response is appalling - it's disjointed misses whole sections of my request and provides little in the way of factual data.

Operations FOI Requests, Department for Work and Pensions

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Dear Paul Malpas,

 

Please find attached DWP response to your recent Freedom of Information
request.

 

Yours Sincerley

 

DWP Operations.

FOI Team

 

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Dear Operations FOI Requests,

I am left confused by your response - are you citing S12 in response to all 6 of my questions - if not can you please specify which questions you are declining to answer under exemption S12 and if this is not all questions then please answer the ones where S12 does not apply.

As an example (but this applies to all 6 of my questions) are stating that the answer to Q2 is that you would have to expend 3½ working days finding out the LEGAL BASIS (note, if you are quoting policy I would like to know the where the policy can be found, what it actually says and on what piece of legislation are DWP relying that allows the making and adherence to such a policy, in other the legal basis as originally stated) for withholding / suspending payments.

Please note that I do not accept that S12 applies to all my questions and you have still not answered the ones where I consider it unlikely that S12 would apply - therefore if I do not receive a satisfactory response to this mail I will be passing it to the ICO for a decision.

Yours sincerely,

Paul Malpas

Dear Operations FOI Requests,

Could you please send an acknowledgement of receipt to my mail of 27.01.14. Thank you.

Yours sincerely,

Paul Malpas

Operations FOI Requests, Department for Work and Pensions

This is confirmation that your request for information has
been accepted by the DWP FoI mailbox.
 
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information owner within the Department who will respond to you direct. 
 
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expect a response within 20 working days.
 
Should you have any further queries in connection with this request do
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For further information on the Freedom of Information Act within DWP
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Please see attached response to your Freedom of Information request.
 
DWP Freedom of Information Team.
 
 
 

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Operations FOI Requests, Department for Work and Pensions

1 Attachment

 
 
Dear Mr Malpas
 
Please find attached the reply to your recent Freedom of Information
review request, reference number IR41:
 
 
 
Thank you
 
DWP Freedom of Information Team
 
 
 
 

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Dear Operations FOI Requests,

Confusion reigns again I'm afraid.

You have suggested that removing my question regarding the numbers and time frames of people making requests for immediate determination may bring my request outside the scope of S12 - however three paragraphs later you say there is no provision for this. Although I find this rather ridiculous we can ignore that for now and I would like you to look at my request with the section regarding numbers and time frames for immediate determination removed.

Your recent letter states that DWP does not accept that an ESA claimant on assessment phase ESA should be treated as having LCW for 6 weeks after the expiration of a fit note (medical certificate) you then direct me to 32A ESA Regs - to help you understand my confusion here is 32A (below) which you rightly say deals with when NOT to treat people of having LCW (note the law specifically tells you when NOT to treat as having LCW in relation to people that previously were treated as having LCW by virtue of previous meeting all the criteria including supply of medical certificate - 32A tells you what to do if the certificate expires and when you should stop treating them as having LCW:

"32A.(1) Where the Secretary of State is satisfied that it is appropriate in the
circumstances of the case then a claimant may be treated as not having limited
capability for work if–
(a) the claimant has supplied medical evidence
(b) the period for which medical evidence was supplied has ended;
(c) the Secretary of State has requested further medical evidence; and
(d) the claimant has not, before whichever is the later of either the end of the
period of 6 weeks beginning with the date of the Secretary of State’s request
or the end of 6 weeks beginning with the day after the end of the period for
which medical evidence was supplied–
(i) supplied further medical evidence, or
(ii) otherwise made contact with the Secretary of State to indicate that
they wish to have the question of limited capability for work
determined.
1(2) In this regulation “medical evidence” means evidence provided under
regulation 2 or 5 of the Medical Evidence Regulations."

It is quite clear to me that the this piece of legislation says that you can only treat someone as NOT having LCW 6 weeks after their medical certificate has expired - or 6 weeks after it is requested whichever is later (so it leaves scope for being even longer than 6 weeks after expiration. Could you please explain to me how DWP are interpreting this legislation to mean anything different from what I have said here. I am aware that FoI is not intended primarily for explanation however it was you who directed me to S32A.

Your letter also states "there is no provision for an immediate determination of LCW" could you please explain then the following section from the Decision Makers manual which says they MUST make an immediate determination:

42209 In all cases where medical evidence ceases the DM must apply the WCA. The test
may need to be applied on the balance of probabilities using all the available
evidence, including evidence from the previous claim where appropriate. Where
there is little or no evidence, the DM may draw adverse inferences. Advice should be
sought from medical services in cases of doubt. Insufficient evidence does not mean
that the WCA cannot be applied.
42210 Where a claimant stops submitting the required medical evidence this does not
count as a change of circumstances to justify a decision to supersede the
entitlement decision. The DM can suspend paying the claimant benefit because of
the failure to provide medical evidence but cannot conclude they are not entitled to
ESA without carrying out the WCA1
. The determination on LCW gives the grounds
for supersession not the lack of medical evidence.
1 R(IB) 1/05
Vol 8 Amendment 5 June 2010

I do note that contained in the above is s section saying payment should be suspended however I would question this based on 16 to 20 D & A regs you have cited. Not sure of the relevance of 17,18,19 and 20 but certainly 16 appears relevant. 16 appears to suggest that you can suspend payment subject (1) and (3)(a)(i) a)it appears to the Secretary of State that—
(i)an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled;

However, as I have explained, as someone who had a medical certificate and it has now expired but 6 weeks have not passed is still treated as having LCW then they DO meet the conditions for entitlement until they are no longer treated as having LCW i.e. after 6 weeks (please also note that even if S16 did apply it says that that the SoS MAY suspend payment in whole or IN PART - so the take that DWP have of automatically suspending in full still doesn't seem correct even if your reliance on S16 is correct)

Finally could you please explain the first sentence of third para from the end in your letter (it may have just been a typo but I can't quite see what you trying to say - it looks as if the sentence stops midway and there is a bit missing at the end)
"There is no specific provision for the suspension or withholding of payment because someone who is to be treated as having limited capability for work."

Yours sincerely,

Paul Malpas

Dear Operations FOI Requests,

Could you please confirm receipt (at the very least) of my mail of 28.02.2014, if you could actually respond then that would be nice.

Yours sincerely,

Paul Malpas

Operations FOI Requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
been accepted by the DWP FoI mailbox.

By the next working day your request will be forwarded to the relevant
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If your email is a Freedom of Information request you can normally
expect a response within 20 working days.

Should you have any further queries in connection with this request do
please contact us.

For further information on the Freedom of Information Act within DWP
please click on the link below.

http://www.dwp.gov.uk/freedom-of-informa...

DWP Operations
FOI Team

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Operations FOI Requests, Department for Work and Pensions

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Please see attached response to your Freedom of Information request.
 
DWP Freedom of Information Team.
 
 
 
 

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