I have a client who did not appeal a failed PCA.

He then put in a new claim (no.1) within the 6mths since that failure. DWP are still to make a decision on this - ICB are saying he will get another medical then they can make their decision, and IS are saying they will make a decision after ICB do.

It is now more than 6mths since the failed PCA decision and cl has tried to make a new claim (no.2). However, he was then told he cannot make a new claim until they have decided on claim no.1. This could take months as they are slow to put people through medicals around here.

Is this right? Surely a new claim can be made, especially as there is a change in his circumstances?

Hi Paul

They have no right to stop him from making a new claim. The decision on the second claim will be made under the own occupation test and he is incapable of work until he fails another PCA. If the PCA is applied after a decision is made on the second claim and the claimant fails it then the decision effective for both claims.

If the PCA is applied before a decision on the second claim is made then it is only effective for the first claim and the claimant must have a further PCA applied for the purpose of the award which would be made on the second claim in order to have grounds to supersede that award.

It may all be rather messy but then who drafted the regulations?

Regards
Paul

Thanks Paul, its what I thought also. Will be getting back in touch with JC+!

I agree with Paul's conclusion and comments about the effects of the new PCA for each claim, but - for completness - the own occupation test doesn't apply to either claim unless the client returned to work for at least 8 weeks since failing the PCA. On the first claim they don't have to pay until the PCA is carried out, on the second claim, they should treat the client as incapable of work pending the PCA.

Both cases come under reg 28 IFW regs.

You mention a new condition though. If the new condition was on the first of the new claims, then even though it's within six months, client should still be treated as IoW pending a PCA. If the second new claim was outside six months, then it's irrelevant what his condition is.

Tony

also, PaulW, the DWP should 'fast track' the PCA for cases where a medical is required before benefit is put into payment.

Hmmmmm.... the decision maker is in this postion with this:

1. For any period of the 1st claim that is within 6 months of the previous PCA then they must first consider whether claimant can be deemed incapable under Reg 28 (ie is he caught by not having had a significant worsening or a new illness so that he cannot be deemed).

2. If the answer for any of that period is that claimant cannot be deemed then the DM must consider the PCA itself (and fast track the medical etc).

3. However, even if claimant fails PCA for this period the DM must also treat the claimant as incapable for any period outside the 6 months as the claimant will again have the benefit of Reg 28.... see R(IB)8/04

Is that right?

Also in this case it sounds like you will still be within time to (late) appeal the initial PCA failure? This would make all your Reg 28 headaches go away. Late appeal on reasonable prospects if there are any?

Thanks for the replies.

We are looking at the other issues in this (ie appealing late). It was the more immediate, practical problem of client not getting any money because the DWP were not allowing the second claim to even be made that I wanted to make sure of.

In the end, when I got involved to help client make the claim (fully expecting a non-decision-maker at the other end of the phone to refuse to allow a claim), their computers were down so they sent him out a paper claim which is being made!