New condition - compared to ESA50, ESA85 or MED 3?

If the customer (on the ESA50) and GP (on the MED 3) had stated only ‘Epilepsy and Diabetes’ and yet the HCP had stated ‘Epilepsy, Diabetes, and Arthritis’ in the ESA85 but the appeal fails can a new claim then be made with a MED 3 stating ‘Epilepsy, Diabetes, and Arthritis’ that would result in payment pending a further work capability assessment?
The fact that Regulation 30(4)(a) refers to something ‘which the claimant was not suffering from at the time of that determination’ does not make me overly optimistic about this but the impact of the changed regulations compels me to at least ask a wider audience.  As ever, any suggestions would be most appreciated.  Thanks.

On the face of it, yes - the HCP wouldn’t be in any position to make a diagnosis of arthritis, would they?

But I’d imagine that ‘athritis’ found its way onto the conditions listed in the ESA85 because the client told the HCP that is what they’d been diagnosed with. If that is the case then the effects of the arthritis were taken account of (legally speaking, at least) in the medical assessment, the WCA decision and quite probably, the subsequent appeal.

So not really a new condition and a DM who was on the ball would probably determine any new claim accordingly…....but would they be on the ball?

You’ve always got the significant worsening option if you get the knock back.

Thanks for the reply.  Having given this some more thought I agree with your reasoning.  It seem that if a customer gives a comprehensive list of their conditions at the medical history part of the assessment and the HCP documents these in the ESA85 report then that is going to make it very difficult to argue that any condition listed was not there at the time of the determination. 
Combined with the recent abolition of the ‘six month’ rule this is going to rule out a new ESA claim.  The ‘significant worsing’ option that you mentioned is not an option in this case.
Now I’m just off to check those Universal Credit gateway conditions to look for any exclusions…..

If you put in the claim for ESA - even though it won’t be paid until a WCA - then your client will not be able to claim UC and will be able to claim JSA.

Is that right? I asked similar question previously and a few people said you couldn’t claim JSA and ESA (whilst awaiting medical) concurrently: http://www.rightsnet.org.uk/forums/viewthread/7714/

JoW - 20 May 2015 12:13 PM

Is that right? I asked similar question previously and a few people said you couldn’t claim JSA and ESA (whilst awaiting medical) concurrently: http://www.rightsnet.org.uk/forums/viewthread/7714/

There is a difference between what is possibly legally and what is possible electronically given the DWP computer systems have been designed so that things which are possible legally can’t be made to happen electronically….

Considering things from the legal position first:

1. Client has made a claim for ESA.

2. That claim for ESA cannot, for some reason, be determined until the client has had a medical.

3. Client makes a claim for JSA.

4. In terms of this claim for JSA then one must ask if there is anything legally that prevents it being awarded? Thinking about this:

a) s.1(2)(f) of the JSA 1995 provides a person is not entitled to JSA if they have limited capability for work.

b) The DM has not decided at the point of the claim for JSA that the claimant does have such limited capability for work.

c) There is nothing about the undecided ESA claim which therefore prevents an award of JSA.

5. If the claimant eventually goes to a medical and is found to have LCW then things change:

a) the decision awarding JSA was clearly wrong as at the time the claimant did not meet requirement in s.1(2)(f) and so should have been refused.

b) The correct approach is to end the award of JSA and to treat the JSA paid as paid on account of ESA to which the client was in fact entitled- see Reg 5(2) Case 2 of the SS (PAOR) Regs 1988 (SI No. 664).

Considering things from the point of view of the capability of the DWP computers, my understanding is:

1. Claims for ESA and JSA are administered on the same IT system.

2. It is impossible to have an undecided claim for ESA and a live award of JSA on this computer at the same time.

3. The DWP will say you have to withdraw the claim for ESA before you can make a claim for JSA or will treat it as withdrawn and not determine it if you claim JSA.

Considering a solution to this mess-

1. Claim the JSA anyway then threaten judicial review on basis there is an undetermined claim for ESA for which they need to see client at medical and they should do the medical. They have a duty to determine claims and must determine this one. Assuming they treated the JSA claim as request to withdraw the ESA claim then that assumption was wrong.

2. If forced to withdraw the ESA claim before they let you make the JSA claim then do the withdrawl conditionally as follows “I do not wish to withdraw my claim for ESA and would still like it to be determined. However, I have been told that I cannot have it determined and claim JSA from now at same time. Therefore, for the purposes of establishing my entitlement to JSA and for that reason only I ask that you withdraw my ESA claim from your computer system and take my JSA claim. I do however request that you determine my ESA claim clerically”.... or something. Then judicial review threat if they refuse to allow you to do that or allow you to do it and then refuse to determine the ESA claim.

Suggestions to DWP- (1) use IT systems that are capable of doing what the law requires or make law that only allows what your IT is capable of. (2) unless and until you do that then provide training to staff on fact a claimant can in fact claim more than one benefit at once- it is only awards of ESA or JSA that preclude entitlement to the other and even in that situation someone is still entitled to claim…. just correct decision would be to refuse to award.

See some comments on this in the excellent Benefits for Migrants Handbook at bottom of p277 to p278- there relating to when someone claimed IS or ESA and waiting an age whilst R2R test applied so decides to shove in claim for JSA and is told they have to withdraw the undetermined claim for IS or ESA…. (further note to DWP- its a bargain at £25 a copy and might help your officers in Wick)

At operational stakeholders meeting last week the DWP confirmed to us that JSA can be paid pending an ESA claim being determined. The legal argument is perfectly set out by Martin. The DWP made reference to pargraph 18(3) of DMG 10/15 which does seem to confirm that JSA can be paid while awaiting determination of a repeat claim for ESA - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419045/m-10-15.pdf

also discussed here - http://www.rightsnet.org.uk/forums/viewthread/8160/

Thanks Daphne- seems I was overly rude about DWP guidance…..

Thanks Martin.

I know the DWP have always had problems dealing with 2 claims in this sort of situation. My query was whether the law allowed for it ( I don’t base my advice on the DWP’s computer system inadequacies!). I thought the law should allow for it but took Daphne’s response saying you couldn’t be fit and unfit concurrently as saying not.

Good to have clarification now from DWP from Daphne

My tenant was OK in the end anyway as passed later medical.

Thanks

Yes - sorry Jo - think I was wrong in that earlier thread - amended in subsequent thread but no good to you looking at that! Have added an addition to that thread to signpost the more recent one - thanks

Daphne - 20 May 2015 05:21 PM

..The DWP made reference to pargraph 18(3) of DMG 10/15 which does seem to confirm that JSA can be paid while awaiting determination of a repeat claim for ESA - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419045/m-10-15.pdf

Para 18(3) also implies that the question of LCW in respect of, eg, a repeat ESA claim still has to be determined despite the presence of a JSA award.  I think it’s going to be important to quote that because, whilst I agree with Martin’s analysis, I can see a problem, certainly legally, in obtaining a LCW determination in such circs.  And that problem is section 1(3)(f) WRA 2007 which provides that a basic condition of ESA entitlement is that the claimant is not entitled to JSA.  A DM is legally obliged to refuse entitlement to the repeat ESA claim once JSA is awarded.  Such decision is completely independent of LCW which is, after all, just another of the basic conditions.  The question is whether there is then still a duty to determine the question of LCW. 

Under section 1(2) WRA the onus is on the claimant to satisfy all of the basic conditions and a DM might be forgiven for thinking that once one such condition isn’t satisfied, there’s no point considering the others. It happens in practice all the time with other benefits, eg a DM wouldn’t spend time considering all issues of an IS claim if the claimant had undisputed qualifying capital of 100k?  As stated above, para 18 of the guidance does suggest that LCW has to be determined regardless.  And I think that’s right because the present circs are exceptional.  The person is only claiming JSA because there will be delay in determining the LCW.  I also think that that accords with para 8.2 of R(IB)8/04 which held:

“.. the phrase “Where the question of whether a person is capable or incapable of work falls to be determined” refers to the need to make a determination in respect of each day of claimed incapacity in the period covered by the relevant claim” (my emphasis)

Whenever someone claims ESA it equally “falls to be determined” whether they have LCW.  Nevertheless, I can see this question of whether there is a right to a WCA being asked here.  Can hear the DM saying “Well the ESA was ended when we started paying JSA, so your client will need to re-claim ESA before we can decide his LCW.”  For that reason, it would be very useful if the DWP could confirm to operational stakeholders that there is, in effect, a right to a WCA in the present circs.

Martin, like to think reg 5(2) case 2 is the legal basis for overturning the JSA but doesn’t that reg simply pre-suppose that there’s a valid ground in Reg 3 D&A for revising/replacing the JSA original decision?  Official error appearing the most appropriate.

Edited 26 June to add: Reg 3(7) D&A actually appears a less contentious ground for revising the JSA than official error in these circs, with JSA being the “original award” and ESA being “another relevant benefit” for the purpose of Reg 3(7).