Claiming ESA after missing WCA appointments

Any suggestions about this case gratefully received:

- Client was receiving IB/IS before being invited to WCA for migration to ESA
- Missed the WCA (good cause not accepted by DWP)
- ESA refused based on failure to attend WCA and IB/IS payments stopped
- MR not requested within time limit

I have now made a late request for a MR with a view to appealing to tribunal about good cause for missing the WCA, but I don’t think the client will receive any payments while appealing. So there are a few things I’m not sure about:

- Should she claim JSA in the meantime or ESA? I’m not sure how the new ESA rules will affect her as I don’t know if she is treated as having had an ESA claim before - she never received any ESA payments because she didn’t attend the WCA. Obviously, the immediate concern is ensuring that she has some sort of income to live off other than her DLA.
- Does the DWP’s attempt to migrate her to ESA count as an ESA claim? Can she apply for ESA now without being affected by the old six month rule and without having to prove a new or worsened condition? (The letter saying that she has been refused ESA is dated within the last six months.) She hasn’t failed a WCA because she hasn’t attended one yet.

Failure to attend is treated as not having limited capability for work under reg 23 of the ESA Regs - so she has failed a WCA and cannot get ESA paid on a new claim unless a new or worsened condition. She can claim JSA in interim though - see http://www.rightsnet.org.uk/forums/viewthread/8183/ - posts 5 and 6

If it’smore tnan 6 months since the FTA decision client can make a new claim; thi ssituation isn’t caught by the new rules.

Even if it’s less than 6 months he can make a new claim and ask for an expedited assessment.

And if he’s too unwell to sustain a JSA claim pending the outcome of any late MR/appeal against the FTA/‘treated as’ decision and the 6 month date is some way off, it might be worth thinking about making the ESA claim regardless - the rule is not about whether one claim, it is about whether one can be paid pending assessment. Even if the client can’t be paid, he still has to be assessed - and can then be paid from the date of claim if he satisfies the assessment.

Not claiming potentially risks losing a significant amount of benefit.