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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA claim ended due to missed WCA, new ESA claim not progressing

LauraD
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Welfare Reform Support, Lifeline Project

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I am working with a client whose ESA claim was stopped because he missed a WCA in September. He missed the appointment (which had already been rearranged twice by the provider) due to poor memory and organisational skills, a feature of the mental health condition(s) for which he was receiving ESA. We asked for this decision to be reconsidered, supplying evidence from MH professionals, but he was found not to have had good cause for missing the WCA and the decision was not altered. He has filed an appeal with HMCTS; he has been advised by CAB that he is highly unlikely to be successful at appeal but his choice is to pursue it regardless.

He has made a new claim for ESA on the grounds that since he was originally awarded the benefit, he has a new condition for which he is currently in the process of getting a formal diagnosis. (Unfortunately, I believe that before he involved me in this, he mentioned the ‘new’ condition as one of the reasons for missing the September WCA- he has since, he says, been told by DWP that this makes it NOT a ‘new’ condition). He has supporting paperwork from a psychotherapist regarding this. A decision was made on 29 October that he would not be paid ESA until he had attended a new WCA, for which he would be referred. We requested that this be reconsidered, submitting evidence, but the decision was not changed. He STILL has not been referred for a new WCA. I checked again with Maximus this morning who confirmed they have not received his file. This despite us being told repeatedly by the DWP over the past 3 weeks that he was being referred. Last week the person I spoke to at DWP said she could not see why he had not been referred but she was referring it ‘urgently’ that day. Today DWP confirmed again that he has not been referred for the WCA- again, they have said they are referring it urgently and have promised us a call back within 3 hours to explain what on earth is going on.

We have started a PIP claim but, even if he eventually is awarded PIP, that does not provide him with an income at this time and the client is becoming understandably desperate. He is living off food parcels provided by my agency (we informed housing immediately his original ESA claim was ended and have completed the paperwork they sent us so afaik there are currently no issues with HB) but is unable to pay any bills so risks his phone and fuel being cut off. I have discussed claiming JSA with a sicknote, the client is terrified that if he does this he will never be successful in claiming ESA in the future and will not be able to keep to any requirements of JSA. He is very much against making an ESA claim but I cannot find any other way of getting him an income and he has been without any since late September.

I have a number of questions and will be hugely grateful if anyone can help!

-If he makes a claim for JSA with a current sicknote, will he be required to seek work?

-Can he actually make the JSA claim whilst keeping his current ESA claim ‘live’?

-The client’s GP has stated to him this week that his mental health is significantly worsening- if his GP will provide a letter stating this, is there any likelihood that the DWP will revise their decision not to pay him ESA without a new WCA?

-The client is in recovery from long term substance misuse: the current situation is not only worsening his mental health but seriously jeopardising his recovery. Is there any way I can use this fact to increase his likelihood of receiving ESA?

-How can the DWP justify not referring him for a WCA when they are requiring him to attend (and ‘pass’) one before they will pay him any ESA? We intend to make a formal complaint about this but are there any timescales the DWP should stick to wrt referring for WCAs?

Thank you for any advice anyone can give. I have experienced new levels of frustration with this situation!

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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I had similar a couple of years ago. I didn’t challenge the failure to attend decision as I felt limited chances of success (why does CAB say no chance of success?) however I assisted the claimant to instruct a solicitor in regard to a breach of the Equality Act in their not expediting a new assessment.

It was the first time I’d used the EQA as a tool to jemmy a payment free and I was well chuffed when only two or three days after the Letter Before Action was posted arrears were paid into my clients’ account. They must have revised the failure to attend decision on their own initiative and paid arrears; including the Support Component, from the cessation date of the old claim. I’ve no idea what evidence they had to revise the FTA decision…

Funny that!

Have a look at the mental health safeguards thread as well. Less of a hammer to crack a nut but not half as much fun 😊

samiam
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WRAMAS Bristol City Council

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I would claim JSA with a sick note pending the good cause appeal. This means he has 13 weeks with no conditionality. Hopefully by that time his appeal will have been heard - if he wins then great, back on to ESA. If he loses no worries as he can make a new claim for ESA (without worrying about the new or worsening condition stuff) 6 months after the original decision (March next year).

As and when he finally gets a WCA decision they should take into account risk of relapse when considering risks to his health under regs 29 and 35.

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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I’d ask TS to expedite his appeal hearing too.

As Dan says, why do CAB think he stands no chance of his appeal succeeding? On the face of it, I’d have thought he stood a very reasonable chance.

Daphne
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Mental health safeguards thread here - http://www.rightsnet.org.uk/forums/viewthread/6728/

GWRS adviser
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Re: safeguards.  If DWP refuse to apply them on the basis that the claimant has already had their responsibilities explained to them (this is a risk for claimants who fail to attend a WCA) then this is something you could try pursuing a disability discrimination case on this by calling the CLA line (https://www.gov.uk/civil-legal-advice).

JCP safeguards before sanctioning have to be followed each time DWP are considering not accepting good cause ‘in order to safeguard those claimants with fluctuating mental health conditions’.  Given that DWP recognise this as a reasonable adjustment in one area of their guidance but refuse it in some cases in another area of their guidance this might arguably be discrimination.

I haven’t been able to get a case where I have been able to get an opinion on this yet but would be interested to hear about cases where people have tried this.

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Hasn’t Greenwich got a pro-forma letter on this that can be sent to the DWP?

GWRS adviser
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Welfare Rights Service, Greenwich Council, London

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Yep, you can find that here: http://www.rightsnet.org.uk/forums/viewthread/8930/#40081

Its more to prevent these situations arising in the first place.  Where someone is without funds we would address that through MR, complaint, discrimination, escalation.

It is something we put together ourselves so you will be able to change it to suit your local area.  Please remove references to Greenwich before using it with your clients.

ta

Tom H
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If you cannot get the “failure to attend” determination revised based on the DWP’s own failure to comply with safeguarding I’d ask the DWP not Maximus (as latter will only advise you to return to DWP) to arrange for the medical to be fast-tracked.  A DWP member of staff I spoke to the other day said they will ask Maximus to offer an urgent (“fast track”) medical in exceptional circs which included where client has mental health problems and they are either at point of eviction or are unable to pay for essentials, eg, gas/electricity.  Not sure where she got this criteria from mind.  Raising safeguarding again here wouldn’t hurt either I suppose in getting a fast medical.

In the meantime, if he does claim JSA, he would need to be awarded it before he could ask for an extended period of sickness (EPS) to commence.  It follows that he would appear to be required to be available and actively seeking work whilst waiting to start his EPS, although he could place reasonable restrictions on his availability due to his health as well as only be required to take reasonable steps re actively seeking. 

Whilst on an EPS, he will be treated as available for work without further condition and, unless it was still considered reasonable for him to take steps to seek work, also treated as actively seeking work.  The EPS lasts for a max of 13 weeks (my reading of JSA regs 55 & 55ZA is that he could have, if he times it right, upto 17 consecutive weeks which would include two periods each lasting 2 weeks under Reg 55 followed immediately by the EPS).
 
It seems he can request the EPS virtually immediately after being awarded JSA.  The sicknote if presented at the date of claim is not, I think, incompatible with his placing the above reasonable restrictions on his availability due to his health condition nor with his identifying reasonable steps re actively seeking work, but the DWP are likely to say it is so it might be worth holding back on producing the sicknote until the EPS is available.

Once JSA was awarded, a decision should be made in respect of the ESA claim, refusing entitlement.  It’s a basic condition of entitlement to ESA that you are not entitled to JSA.  And once a decision to that effect is made the ESA claim, here made in Oct 2015, also ends (section 8 SSA98 provides a claim cannot subsist beyond the date of an outcome decision).  I learned recently, however, that the DWP have a work-around procedure which allows the ESA assessment process incl a medical to continue in the background despite there being no “live” ESA claim.  They call this procedure either an “off live” or “clerical” claim.  That’s obviously a good thing in the present circs provided that the JSA Dm who decides whether to grant the EPS appreciates that the clerical ESA “claim” isn’t a claim in the legal sense, more like some record of a continuing obligation to send a person for a medical.  That’s important because one of the criteria in Reg 55ZA for qualifying for an EPS is that you have not stated in writing that you either propose claiming or have “claimed” ESA. 

If he claims JSA, the client or adviser should make sure ESA are aware that he still intends to undergo a WCA, ie ask for his ESA live claim to be kept open clerically once it formally ends upon the award of JSA.

A disease or bodily/mental disablement will be considered, under DWP guidance, to have significantly worsened for the purpose of treating someone as having LCW pending a new WCA and, therefore, for the purpose of paying ESA before that WCA, only if it’s likely that the person would pass the WCA on the strength of that worsened condition.  It might be worth getting a doctor to identify the descriptors that s/he thinks apply rather than producing a general statement that the person’s health has worsened.  The DWP guidance here based on old caselaw is almost certainly wrong mind and worsening should be considered in its ordinary medical context I think as was the case in the past.

 

[ Edited: 27 Nov 2015 at 03:42 pm by Tom H ]