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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Failing WCA then mistakenly claiming ESA next day - how does this affect appeal/payments?

Tom B (WRAMAS)
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OK, so I’m back to the wonderful world of ESA after a year away…

If somebody has failed WCA, then reclaims ESA the next day with no deterioration / new condition.

MR lodged against original decision - waiting for outcome, likely will need to appeal.

2nd claim refused straight away for obvious reasons.


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Will the fact that client tried to re-claim and was refused affect ESA payments pending appeal against 1st decision/on-going payments?

Will client need to MR/appeal 2nd decision as well?

Dan_Manville
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No and No

Once the first appeal’s in ESA should recommence.

Tom B (WRAMAS)
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Thanks Dan.

Just to confirm - the 2nd claim has been flat out refused and a negative decision issued (not just a case of no payments pending WCA) - would this still be the case?

Dan_Manville
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tbidmead - 03 July 2015 11:41 AM

Thanks Dan.

Just to confirm - the 2nd claim has been flat out refused and a negative decision issued (not just a case of no payments pending WCA) - would this still be the case?

Yes, the only time I can see a second ESA claim causing problems as you foresee would be if a person pursued it as far as a medical to establish deteriortation and was found, still, not to have LCW as res-judicata might kick in to limit the period of the previous claim.

Tom B (WRAMAS)
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Once again, many thanks for your help Dan

EPC
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Can I jump in on this thread please? My client failed WCA when assessed on migration from IS (long term incapacity) to ESA. Did not understand the assessment was anything to do with ESA and when she went to the JC+ as advised and explained that her IS had been stopped she was advised to claim ESA. Meanwhile the first ESA claim is under mandatory reconsideration and very then moves to appeal.
Second claim to ESA in process and HRT came up. Half way through doing the HRT the officer said “I don’t think I need to do this with you” and went to check with her superviser. Client has been in UK for 30 years, not yet established her full history but some working and studying and more recently claiming IS due to incapacity. Officer returns and confirms HRT not necessary.
Next day gets call from processing centre, must do HRT and it is done over phone.
A few days later rings DWP - you have failed the HRT.
Receives letter stating ESA (2) refused - but on grounds of not enough NI contributions and “you have enough money coming in to meet your needs.” No mention of HRT (and she had no other income btw)
I have been doing the rounds of IB/ESA/new claims/reassessment and finally speak with IB section who confirm they have only just had notice of Appeal lodged and will now push through her claim so ESA appeal rate can be claimed on ESA claim 1.
This morning have been advised that no payments (STBA or appeal rate) as she failed HRT.
Have requested a written decision on this as never received written notice of failed HRT but my question is -
Would this have raised its head but for the erroneous claim 2?
Would she have been subject to HRT as part of the migration process?
Does that matter now given that it has popped its head above the precipice and thus bites anyway?

Dan_Manville
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That’s a very different question however, yes, the HRT will apply on conversion. If DWP find your client is no longer temporarily incapable of work, for instance, then they might fail the HRT/R2R on conversion.

EPC
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Thanks Dan.
DWP stated to me that her appeal rate ESA would be reinstated as no HRT on migration. When they then made the decision she was not hab. resident I thought the second ESA claim had opened the can of worms.

Dan_Manville
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For IRESA there’s always an HRT; it’s more a question of whether they decide to determine it at that precise moment.

Paul_Treloar_CPAG
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Forgive me if I’m missing something here but on what rational basis would someone be told they’ve failed HRT if they’ve lived here for 30 years?

EPC
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Not sure Paul. I am waiting for a written decision but suspect it won’t provide much in terms of identifying DWP thought process.
In meantime I have requested my client provide me with a chronological history so I can determine if/when/where she may have acquired a permanent R2R. It is not uncommon in my experience for DWP to make such decisions on long term resident A8 nationals.

Dan_Manville
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Paul_Treloar_CPAG - 16 July 2015 10:14 AM

Forgive me if I’m missing something here but on what rational basis would someone be told they’ve failed HRT if they’ve lived here for 30 years?

EU national who claimed as temp incapable, failed the WCA and in the twisted world of JCP was percevied to lose their R2R along with it was my thinking.

Paul_Treloar_CPAG
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Dan Manville - 16 July 2015 12:36 PM
Paul_Treloar_CPAG - 16 July 2015 10:14 AM

Forgive me if I’m missing something here but on what rational basis would someone be told they’ve failed HRT if they’ve lived here for 30 years?

EU national who claimed as temp incapable, failed the WCA and in the twisted world of JCP was percevied to lose their R2R along with it was my thinking.

Ok, I suppose it’s a possibility, thanks Dan.

Dan_Manville
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EPC - 16 July 2015 10:46 AM

It is not uncommon in my experience for DWP to make such decisions on long term resident A8 nationals.

If they’re A8 and were here on a visa for 12 months prior to the accession (1/5/04) they might have transitional protection.