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Premature ESA assessment
Most of my clients now have to wait quite a few months for their ESA medical, but here the opposite happened.
Client was on ESA (pending appeal) until March 2014, when she claimed JSA following unsuccessful appeal. She then found work and come off benefits. She stopped work again in June 2014 due to sickness - she had suspected TB which turned out to be just a really bad chest infection, and she is only recently been given all clear for that (still has other medical conditions apart from that).
She had made a PIP claim, too, and had a letter confirming that her case had been sent ATOS.
In June (when she was not claiming ESA) she had a letter inviting her to ATOS medical for 10 July, which she attended as she thought it was for PIP; the letter did not say which benefit it was for. {Have today checked with ATOS - she is still in the queue for the PIP medical)
She reclaimed ESA on 4 July and was sent ESA50 on 13 July.
She just now received a letter dated 1 August disallowing her ESA on basis of the medical on 10 July and her completed questionnaire (without specifying which questionnaire that was).
Is the decision to stop ESA on the basis of this medical procedurally correct?
yes.
The periods of LCW link if they’re less than 12 weeks apart and the assessment phase ends at week 13 of the cumulative period so as long as the gap is less than 12 weeks and the cumulative period of the claim is more than 13 it’s effectively the termination of one period of LCW after an assessment.
See regs 5 & 145 ESA regs.
Thanks, Dan. What if the gap was over 12 weeks? I think her JSA started 26 3, and ESA reclaim was on 4 7
If the gap is over 12 weeks, the two ESA claims form two claims instead of one linked claim. As far as I’m aware, the assessment phase should start again from week one.
Thanks, Dan. What if the gap was over 12 weeks? I think her JSA started 26 3, and ESA reclaim was on 4 7
Reg 145 (i.e the linking rules) looks at linking periods on limited capability for work rather than ESA claims. If your punter handed in a sick note in June then that is the trigger date for the new period of LCW, not the later date when they filled out an ESA1.
Sadly the linking of the assessment phase looks at the dates of claim; the assessment phase doesn’t start again or indeed begin afresh until the claim is made however in deciding whether a new one starts it refers back to periods of LCW which may have commenced before the new ESA claim is made i.e. by giving in aq new sick note.
I hope this makes sense; it’s early and I am pre coffee.
Thanks again, Dan and Edward.
The client was working for an agency and last work 9 June , so that would bring it within the 12 weeks. Her employment was ended from 2 July, I think.
I am not sure whether the client has submitted sick notes to her employer, or even she even reported sick to them - I will checkthat with her. I suppose reporting sick would have been enough for the first 7 days, even without a sick cert
Assuming she did report sick to her employer on 10 June and she was issued with an invitation to a WCA on 12 June as a consequence of that, does this mean DWP/ATOS prioritise WCA for people who have come off benefit within the last 12 weeks? This would not be good for people with intermittent health conditions and my client group (HIV).
No I think it’s a fluke that ATOS hadn’t been notified of the end of the previous period of LCW and invited her for assessment anyway however that assessment still yielded sufficient evidence to trigger a correctly made WCA decision.
However… I’d missed your “pending appeal” comment above and that might be important. I think I am wrong!
Reg 5 doesn’t bite where it’s deemed LCW under reg 30 and Iit’s possible she’d triggered a new assessment period with the new claim. I’ve not got time now to do all the headwork that’s needed as I’m out the door in 5 minutes but there’s a question arising about whether they can kill the assessment period with that medical. I would recommend lodging an MR to stop the ball and a good hard read of page 863 of Bonner
Yes, I think you could be right, Dan. I had not looked at the regs properly and missed out the final part in 5 (2) (b) (v).
Have done a MR request for the client, but she will have to sign on for JSA anyway in the meantime.