Backdating of components

I have recently been informed by one of my clients that he has been placed into the support group after I had completed an ESA50 with him in January 2014 for re-assessment. He was not assessed until September 2014 due to delays at our assessment centre and his decision was then made in October 2014.

ESA have only paid backdated support component and EDP from his assessment date in September and I think this is highly unfair as evidence on the ESA50 was sufficient to suggest he should be placed in the support group. Surely the client should not be penalised for the delays in the Atos assessment process?

If it were a new claim the component would be taken from the 14th week date but the DM states they could only backdate further if the client had requested a supersession. Surely the evidence to place him in the Support group on the ESA50 was new evidence and no different to evidence provided if I had contacted in writing requesting a supersession?

I would have requested the supersession at the time had I realised that there would be such a delay in re-assessment and that the component would not be paid from when they had received his ESA50.

Any suggestions?

Susie

Where did the ESA50 come from? Was he sent it via the DWP/ATOS as part of the standard review process or did you download it/obtain it for him on the basis that his condition had worsened? If the latter, it should be possible to argue that the ESA50 itself should have been treated as a request for a supersession of his ongoing award. If the former I can’t see any (obvious) way of arguing he should be paid from an earlier date (though I am sure there will be other ideas).

The ESA50 was sent out by Atos for reassessment.

It is pointing to what I already thought which is that the Atos delays in assessing him have unfortunately resulted in a loss of additional component for my client.

I will submit a supersession request with the ESA50 if I have the same situation again.

Thanks

Reg 34 ESA Regs provides:

“(4) Where a determination has been made about whether a claimant–

(a) has limited capability for work-related activity;....

the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

(5) This paragraph applies where–

(a) the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;

(b) n/a

(c) at least 3 months have passed since the date of the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity”

The re-assessment here could be authorised under either para (5)(a) or (c) above.  I don’t think it really matters.  There has been a change of circs since the original decision whether the claimant had LCWRA (he didn’t have it).  That change is represented by the new determination that the claimant does have it.  I think the resulting supersession must take effect under either of the following provisions of the Decisions and Appeals Regs:

(i) Reg 7(2)(bb) - from the beginning of the benefit week in which the ESA50 was sent as that is when the DM acting on his own initiative “commenced action with a view to supersession” or

(ii) Reg 7(2)(a) - from a date upto one month before the DWP received the ESA50 as submission of a completed ESA50 could quite easily in my view be regarded as an application by the claimant for supersession (I’m not sure what difference it makes whether the claimant downloaded it or was sent it).  The only problem with this ground is that, as you say, the ESA50 is returned to Atos rather than the DWP.  For a supersession to take effect under this ground the notification of your change of circs needs to be made to an “appropriate office” defined by Reg 3(11) D&A Regs.  That would appear to rule out Atos but it is not clear whether the list of offices there is exhaustive.

Probably safer to rely on ground (i) and MR/appeal.

Thanks Tom. I have submitted a mand recon request and will see what response I get.

Sue