esa after 30th march.

see my posts 64 & 67 above

We have been advised of the ‘clerical claim’ process at local DWP stakeholders and St Austell BC, during a telephone ‘call in’ to the meeting, insist that they process them regularly.

However no one can tell us how a claimant actually initiates the ‘clerical claim’ process for ESA while on JSA. ESA claim line won’t accept a ‘new claim’ when there is a current ESA claim/award. The concept of a ‘clerical claim’ does not compute.

I dont understand how DWP think this would work in practice. If the claimant re-claims ESA with the same medical condition they won’t be paid pending a new WCA (or a decision made on scrutiny’) under Reg 30. They can’t also make a new claim for JSA. There is no process by which the ESA claim would then become ‘clerical’ if they did. The likely hood is a DM would simply look at the previous WCA and make the same decision anyway.

Although DWP say this does not apply where the issue is significant worsening, the same applies in practice.

There is no practicle method by which the significant worsening / new condition can be addressed for ESA Reg 30 while the claimant remains on JSA. As ‘limited capability’ is an ESA question there is now way it can be referred to an ESA decision maker through any JSA admin process because its not relevant for JSA (except in so far as someone must not have limited capability in order to claim JSA!).

A claimant who has a significant worsening has to make an ESA claim and wait until worsening is accept by a DM on ‘scrutiny’ or following a new WCA.

whilst the extended period of sickess can assist in the short term - it still provides no route to address Reg 30 (bearing in mind work coaches appear to have little understanding of the EPS rules in practice anyway).

So in practice there has been no progress on this issue!

Thanks Peter - I will just wait for any other responses and then put together a response…

1)  In my experience of repeat claims, no.  Decision makers are finding that there is sufficient information from the previous failed WCA to enable a new WCA almost immediately in respect of the repeat claim.  Situation 1 in your above linked thread.  That is not necessarily a bad thing in my view as the claimant is at least able to get to tribunal quicker.

2) If the new WCA didn’t take place within 13 weeks of the start of the “clerical claim” I don’t think the claimant would be faced with the options of JSA or nothing.  That’s because the interaction between Regs 55 and 55ZA JSA Regs 1996 is such that it appears possible to take, under Reg 55, your 2 short periods of sickness (SPS), each lasting 2 weeks, virtually immediately after your 13 week extended period of sickness (EPS) ends.  All that appears to be required is a gap of at least one day between the ending of the EPS and the start of the first SPS.  Further, there appears nothing in Reg 55 which prohibits the 2nd SPS from starting immediately after the end of the first SPS with the effect that you can have the 4 weeks in one go.  So I think it’s a breathing space of, in effect, 17 weeks.

3)  It is very difficult to square what they are proposing with the actual law, although I appreciate that that is not something which has particularly troubled the Dept in the past.

First, it is a condition of both an SPS and EPS that the person has not stated in writing to the JSA DM that he either has already claimed or intends to claim ESA.  Laughably, it seems it’s not the actual making or the intention to make a rival ESA claim that prevents a SPS/EPS being awarded, but the fact you tell JSA about it in writing.  Ignorance is bliss therefore.

But I’m sure the Dept is not suggesting in the above response that a claimant doesn’t inform JSA of the ESA claim.  Rather, they appear to be suggesting that a clerical ESA claim is not really a claim at all and, therefore, wouldn’t stop the EPS commencing anyway.  That’s certainly a contentious interpretation of the law.  The response states that the clerical claim might “become” an ESA claim in time, eg if the person passes the new WCA. I’m still struggling with the idea of a claim that has the potential to “become” a claim.

I appreciate that not being entitled to JSA is a basic condition of ESA entitlement.  But there seems nothing stopping a DM from delaying an ESA outcome decision until the result of a new WCA is known.  As we know, a claim subsists under section 8 SSA 98 until an outcome decision is made in respect of it.  Consequently, it’s legally plausible for a WCA to take place whilst the person is receiving JSA. 

If the person passes the new WCA in the above circs they would have been shown retrospectively to have had LCW from day 1 of their “clerical claim”.  That claim may or may not have pre-dated the JSA award.  If it did, the ESA arrears could be paid from day 1 of the claim until the start of the JSA award.  It would be necessary to then revise the JSA in order for the ESA award to continue.  The Regulations which introduced the above EPS also inserted a new Reg 3(5J) into, as well as amend Reg 7(38) of, the D&A 1999.  These concerned, respectively, revision and supersession of ESA, but there was silence concerning revision of the JSA.  Consequently, it seems the only basis for revising the JSA here would be official error (Reg 3(5)(a) D&A).  The DWP would not accept that as they would argue that the decision to award JSA was correct on the facts known at the time and only shown to be incorrect subsequently.  So I’d like them to explain, Daphne, how they’d revise the JSA.

If, on the other hand, the clerical ESA claim had been made after the JSA, it seems the JSA would end immediately before the start date of the retrospectively awarded ESA (ie we’re still assuming the claimant is eventually successful at the newly arranged WCA).  The JSA that would have been paid after that date could be treated as paid on account of the ESA.  However, the assessment phase would appear to end only once the new WCA was made.  The person would, therefore, miss out on arrears of the WRAG or SG if the new WCA took longer than 13 weeks. 

Finally, and bearing in mind we’re talking in reality about a very small minority of claimants whom the DM decides to refer for a new medical rather than disallow immediately, I was looking at Reg 30 the other day and wondering whether there’s a loophole allowing the said minority to receive ESA whilst waiting for that new assessment.  That’s because Reg 30 ESA in effect provides that you can be treated as having LCW if you satisfy the following conditions:

(a) you have a sick note, and

(b) it has not been determined:

(i) in your last WCA that you did not have LCW, or

(ii) that you failed to return the ESA50 or attend a medical within the last 6 months.

Seems a person could say “yes, I know I’ve failed the last 15 WCAs but I’ve attended every one of them”.  He’d arguably satisfy Reg 30(2)(a) and (b)(ii) in those circs and, therefore, satisfy Reg 30(1).  It’s how you define the “or” as ever.

Tom, do you have any experience of claimants trying to / succeeding in making ‘clerical claims’ for ESA while they have a ‘live’ claim for or award of JSA?

Peter Turville - 22 August 2016 01:26 PM

Tom, do you have any experience of claimants trying to / succeeding in making ‘clerical claims’ for ESA while they have a ‘live’ claim for or award of JSA?

See the two paras beginning “On that last point” in my post here:  http://www.rightsnet.org.uk/forums/viewthread/9025/#40624

I’ve changed my mind re the point I made in the edit to that post, ie that the award of JSA should end the ESA claim.  As I stated above in the present thread I think it’s legally ok to delay an ESA outcome decision in order to allow a new WCA to take place despite the fact the ESA claimant has been awarded JSA in the meantime.  The problem with the DWP response to Daphne is that it appears to ignore the condition for SPS and EPS that you state in writing that you have not claimed ESA. 

The client whose case raised the issue of the “clerical claim” in my above linked post chose not to clerically keep open his ESA and just stayed on JSA pending his failure to attend ESA appeal and we lost contact with him subsequently. 

It appears that the DWP have a computer programme which logs clerical claims having been made which is separate to the programme on which they record “live”, ie non-clerical, ESA claims.  The former programme it seems just logs that a clerical claim has been made but DWP staff have been able to read notes left on it so it must have a “notes” tab also.  I think clerical claims are processed manually and details of the decision would be added as a “note” on the computer.  All very confusing I know.

This is the latest, very wishy-washy reply from the DWP which took endless chasing to get -

There is no legislation as such to support this. This was introduced as an easement to ensure claimants had some income pending the outcome of the ESA WCA. They receive on JSA the equivalent amount they would receive on ESA minus of course the component.
They do not relinquish the ESA claim – the process of the WCA continues and once the assessment is completed they will receive the entitlement to ESA back to the beginning of their claim minus any JSA paid to them already. If a claimant does not wish to claim JSA pending the outcome of the assessment then yes unfortunately they will receive no benefit.

I am losing the will to live a bit on keeping on going back to them but welcome any points and I will draft something

Can a deliberate policy choice properly be described as ‘unfortunately’?

Daphne - 25 October 2016 11:00 AM

This is the latest, very wishy-washy reply from the DWP which took endless chasing to get -

There is no legislation as such to support this. This was introduced as an easement to ensure claimants had some income pending the outcome of the ESA WCA. They receive on JSA the equivalent amount they would receive on ESA minus of course the component.
They do not relinquish the ESA claim – the process of the WCA continues and once the assessment is completed they will receive the entitlement to ESA back to the beginning of their claim minus any JSA paid to them already. If a claimant does not wish to claim JSA pending the outcome of the assessment then yes unfortunately they will receive no benefit.

I am losing the will to live a bit on keeping on going back to them but welcome any points and I will draft something

This doesn’t appear to answer any of the issues raised about Reg 30(4)(a)&(b) and ‘clerical claims’ to allow a DM to address these provisions. So back to square one. I can’t help feeling the DWP just want to ignore the issues the amendement created.

I’m now trying to work out the impact (if any) of CE/4647/2013 http://www.rightsnet.org.uk/welfare-rights/caselaw/item/esa-regulation-30-cannot-apply-following-a-new-limited-capability-for-work on this issue.

...This was introduced as an easement

Benefits is hard enough as it is without them going all land law on us.  I like to think there’s a Malcolm Tucker type character in the DWP’s legal section in Leeds banging their head off a wall every time they read a response from their colleagues to the stakeholders.

As far as that latest UT judgment is concerned, it’s unfortunate there was no submission re the points which the UT judge raises.  Not long after post 23 above, I’d done a skeleton argument in another case which set out why there was a freestanding appeal against a determination under Reg 30 that a person hadn’t got worse etc, but ended up not needing it.  Still, it’s good to see that the Judge suggests there is an arguable case for such an appeal.  I do have issues with a couple of his other findings, namely the test for significant worsening and the WCA decision effectively ending the tribunal’s jurisdiction to consider Reg 30, but they are for another day.

Just wondering the experiences people have had thus far with requesting an ESA claim stays ‘off live’ pending an assessment, allowing a new claim for JSA to be made?

I have just helped a client in a similar situation, although in this instance it involved making a new ESA claim whilst requesting the previous claim remains as an ‘off live’ claim pending assessment (new claim made as it is now over 6 months since client failed to attend WCA). Managed to put the new claim through, so we will see how it pans out.

What have others experiences been?