ESA appeal pending/new claim for ESA made alongside in error

Hi,
Just trying to work our how best to proceed. My gut reaction is to withdraw the new claim and get the claim under appeal reinstated. Situation as follows:

ESA refused following WCA -(no previous claim for ESA - has always worked)
MR made – claimed JSA.
MR refused.
DL made.
Advised claimant to request to go back onto ESA pending appeal

Don’t know how, but she has ended up making a new claim for ESA instead!

Long story short:
DWP have said the following about this:
• Do not worry it will sort itself out in the end
• Do not worry once your appeal is heard it will be sorted out
• It is because she has a new condition so she had to make a new claim (has a diagnosis of condition first claim was made for - no new condition as such)
• It is done now and there is nothing we can do

All the above is rubbish - unless will it all just be sorted out? Given a new ESA50 has been sent out to complete I doubt it (not yet completed whilst I ponder the best way to proceed.).

Timeline:
first claim made March 2015
medical 29/09/15 – and now has diagnosis
decision 04/10/15
MR & DL all in place.
Appeal papers issued to all parties 13/11/15

2nd and new claim for ESA made 27/10/15 instead of reinstating claim under appeal.

I’m on a DWP 3 hour call-back - so far had two calls but she didn’t quite get it and had had to go away to consult someone else. awaiting the 3rd call.

Any suggestions welcomed.

Many thanks,
Elaine

If there’s never been a previous WCA then it doesn’t really matter whether the first claim was made before or after 28/3/15 when the new repeat claim provisions came in.  If date of claim is before 28/3 then client has made and is pursuing an appeal against a decision finding her fit for work and, therefore, has the protection of both Reg 30(3) and Reg 147A ESA Regs.  The latter prohibits a new WCA taking place before the tribunal unless there’s been a worsening of existing condition or a new condition occurring since the appeal was lodged (ie since the date the award of ESA pending appeal commenced) which isn’t the case here.  But even if it were the case it wouldn’t stop payment of ESA pending appeal.  That’s because if she failed a new WCA on, say, 25 Nov in respect of the claim she made on 27/10, Reg 147A(4) would treat that WCA as if it hadn’t been made allowing any ESA pending appeal to continue at least until the tribunal has taken place.  But, as I say, no WCA could be carried out at all unless she had a new condition etc.

If the March claim was made on or after 28/3 then she would be appealing a “relevant decision” and would, therefore, still have the protection afforded by 30(3) and Reg 147A above, exactly as above.

The fact she’s made a new claim is a complete red herring.  If there’s no change of circs after the date of direct lodgement of the appeal and she wins her tribunal, Reg 147A(6) provides that the tribunal result is conclusive for the WCA re the ESA pending appeal.  Reg 147A applies to all awards of ESA pending appeal, ie those made where the requirement for an ESA claim was waived due to the lodging of the appeal, and those made in respect of a claim submitted pending an appeal.

Hi Tom,
so do I proceed and complete the new ESA50 on the basis if we don’t, her ESA will stop?

efloyd - 19 November 2015 02:13 PM

Hi Tom,
so do I proceed and complete the new ESA50 on the basis if we don’t, her ESA will stop?

Hi Elaine

There’s no advantage to be had from the new claim if there’s no worsening or new condition.  And it seems nothing adverse could result from its withdrawal.

I’d overlooked the bit about the ESA50.  A determination under Reg 22 treating the person as not having LCW for failure to return the ESA50 may be made, although Reg 147A(4) provides some protection by treating such a determination as if it had not been made, thereby allowing ESA pending appeal to continue in payment until the tribunal.  However, if you then won the tribunal, the Reg 22 determination would kick in at that point and effectively make the result of the tribunal for a fixed period. 

So you have to return the ESA50.  Withdrawing the new claim does not, it seems, alter that fact.  They never in my experience send an ESA50 out when someone is on ESA pending appeal via the normal route, ie awarded on the strength of having submitted an appeal, but there seems nothing stopping them from doing so, and failure to return it would allow them, as stated, not to stop the ESA pending appeal, but to time limit any ESA award made by the tribunal.  Hope that makes sense.  Your client’s unfortunate - they wouldn’t have got an ESA50 had they not actually made a new ESA claim.  But now they’ve got the ESA50, they should complete and return it.

The client could also be sent for a medical whilst claiming ESA pending appeal and he’d have to attend that too for the same reasons as above. 

They should definitely be being paid ESA pending appeal at present however.

Thanks Tom, very helpful,
I’m pondering!
Elaine

I’m always pondering:)

And slightly off topic but important nonetheless.  It seems claimants affected by the new rules on repeat claims should be aware of the risk in making new claims based on worsening etc in order to try to get some ESA pending appeal.  It seems the following scenario could apply:

(1) Last WCA you sat was unsuccessful and not under appeal.

(2) ESA new claim made after 28/3/15

(3) Failed WCA in June 2015 and MR unsuccessful

(4) Lodge appeal in July 2015

(5) Under the new rules, lodging the appeal does not waive the need to make a new ESA claim if you want DM to consider whether you’re entitled to ESA pending appeal.  That’s because you’re not appealing a “relevant decision”, defined as your first WCA failure or your first failure since winning an appeal.  Here, the WCA in (3) above is your 2nd failed WCA in a row, ie you failed in (1) too.

(6) New ESA claim made in Aug 2015 asking for ESA to be paid pending appeal on the basis that you have a new or worsened condition.  Regardless of the outcome of that claim, ie whether DM accepts worsening and starts to pay ESA pending appeal, or doesn’t accept it and refuses ESA pending appeal until you sit a new WCA, you risk the decision in (3), if successfully overturned by the tribunal, being effective for a fixed period only.  That’s because the tribunal result, normally conclusive for the ESA pending appeal due to Reg 147A(6), is not so here as Reg 147A no longer applies under the new rules unless you’re appealing a “relevant decision”.  Instead, we’d be in the same position we were in prior to 28/6/10 (when Reg 147A was introduced) where a new WCA had to be carried out in respect of the claim for ESA pending appeal regardless of the tribunal result. 

Clients need to think carefully, it seems, about making new ESA claims, especially where there’s not much merit in their cases for new/worsening conditions, especially if the merits of the appeal itself are stronger.  Might be easier claiming JSA with an extended period of sickness (EPS) thrown in. 

On that last point, had an interesting discussion with a new claims DM yesterday,  Apparently, if you claim ESA and aren’t being paid it until you sit a new WCA, the claim becomes a “live” one on the DWP computer.  If a claimant subsequently claims JSA, he can ask ESA at the point he makes his JSA claim to remove his live claim from their system but continue treating it as a clerical claim instead to ensure that he is sent for a new WCA.  The case in question was someone who had not attended a medical and had re-claimed ESA within 6 months without any new condition or worsening.  His JSA claim would replace the ESA as the “live” claim on the computer - there cannot be a “live” JSA award and a “live” ESA unresolved claim both on the computer at the same time, but the latter can be kept alive clerically. 

It’s important for the claimant to make ESA aware, eg I suppose if applying for JSA online by expressly stating in the “any other info box” on the JSA claim, that he wants his ESA claim kept open clerically.  JSA section should notify ESA of the claimant’s wishes in those circs as they’d be contacting ESA anyway to tell them to remove the “live” ESA claim from their computer (apparently, it takes 3 days to remove it).  In the absence of such a pro-active approach on the claimant’s behalf I was concerned about how ESA would otherwise know the claimant’s wishes.  The DM said they may phone the claimant to confirm that s/he does not wish to abandon their ESA claim, but I have my doubts about how often that would be done in practice.

Edit: Of course, the law, worth little in DWP land nowadays, wouldn’t countenance any live or “off live” (that’s another term I heard the DM use), ie clerical, claims subsisting beyond the date of a decision.  And a decision would have to be made refusing entitlement to ESA once JSA was awarded.  I prefer to think of the “clerical claim” in this context as more like an “IOU”, ie I owe you a medical/WCA.

On a related subject has there been a change in the rule that a person can return to ESA once the tribunal service acknowledges the SSCS1 form. I’ve had a couple of recent cases where people took their tribunal Service acknowledgement letter to JC+ and asked to be signed off JSA and ESA reinstated pending appeal.

Both were, as I understand it, told they would have to make a new claim for ESA (one was even given the paper claim form).  I have spoken to our local (and very helpful) Vulnerable Customer leads at ESA and JC+ who are looking into it and I am confident that it will be resolved but I was wondering if this was a widespread issue.

Pete C - 20 November 2015 01:03 PM

.. has there been a change in the rule that a person can return to ESA once the tribunal service acknowledges the SSCS1 form.

Pete, there has been a change.  Unless you’re appealing a relevant decision then lodging the appeal is no longer enough to get you back on ESA.  You need to claim it again in the normal way.  That’s why your clients may have been issued with ESA1s.  However, as I say, the change only affects those people who aren’t appealing a relevant decision.  If you are appealing a relevant decision then the lodging of the appeal continues to act as a waiver of the need to make a fresh claim.  See Reg 3 C&P Regs as amended on 28/3/15.

It’s the reason why point (6) of my example above mentions a new claim for ESA pending appeal having to be made.

Both were of a relevant decision, the decision that following an assessment the claimant was not entitled to any further ESA

Pete C - 20 November 2015 03:27 PM

Both were of a relevant decision, the decision that following an assessment the claimant was not entitled to any further ESA

That’s not necessarily a relevant decision.  It’s the first relevant failure which makes it a relevant decision.  See point (5) of my above example.  Full definition at Reg 30 ESA Regs.

But even where it is a ‘relevant decision’ it isn’t uncommon for DWP staff to insist a ‘new claim’ for ESA has to be made when person concerned has claimed JSA during the MR period. It’s cock-up rather than conspiracy I think, but it’s irritating (and, of course, both misleading and wrong).

1964 - 20 November 2015 04:43 PM

But even where it is a ‘relevant decision’ it isn’t uncommon for DWP staff to insist a ‘new claim’ for ESA has to be made when person concerned has claimed JSA during the MR period. It’s cock-up rather than conspiracy I think, but it’s irritating (and, of course, both misleading and wrong).

I completely agree

Thanks All; I’m still pondering but seeing the client tomorrow.