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Revised ESA50 and WCA changes
If I’ve understood this correctly, the WCA changes are due to come into effect on 28 March. The revised ESA50 has been available since 14 March and is what you get from the link on the Directgov site. Our local JC+ definitely believes that all IB reassessments will be on the basis on the revised WCA. Which seems to mean that people can claim or their reassessment can start before 28 March but they will be assessed using a test that does not become law until that date. Is this lawful?
Probably is lawful provided that the WCA takes place after the 28th. New claimants are not subject to the WCA under either version until the assessment, so provided the assessment is after the 28th then the new rules would apply. Existing claimants for ESA or IB are under the old rules until the WCA is applied so if it is applied after the 28th….........
I did hear that the DWP are sending out the new version of the ESA 50 at the moment and may be stalling the assessments until after the 28th so the assesment and the ESA50 match and are under the new rules - I must emphasise that this is only hearsay!
The regs essentially say that the new test applies where the WCA determination is made on or after 28th March. There is an exception for those who were sent a questionaire relating to the previous version of the schedule before 28th March but this would not seem to apply where someone is sent a new version of the ESA50. The wording is
“2(2) Where before 28 March 2011 a questionaire relating to the previous version of Schedule 2 to the ESA Regulations was issued to a person in accordance with regulation 21(1)(b) of those regulations (information required for determining capability for work) regulation 4(1) does not apply to that person for the purposes of making a determination as to limited capability for work under part 5 of the ESA regulations.”
On a literal reading this would mean that if you had the old ESA50 any time in the past, even on a WCA from a couple of years ago, the new schedule 2 would not apply to you!
Heres a ling to the amedment regs:
[ Edited: 21 Mar 2011 at 04:18 pm by Damian ]Thanks Damian - so busy trying to get up to date with everything that some of the detail is passing me by…
Will people who completed the IB50 and are still waiting for their medical at 28th March be assessed on the new ESA test or the old incap test?
If someone claims ESA prior to the end of March 2011 and is sent an ‘old style’ ESA50 then they will be assessed under the ‘old style’ WCA for ESA purposes and for the purposes of any appeal.
However, this is subject to a six month limit from 28 March 2011 after which all assessments will be made under the amended provisions.
Does anyone know whether this info:
http://www.meassociation.org.uk/?p=4592
is correct or not? I’ve tried getting info from our local BDC but they don’t seem to have a clue. The DWP website says nothing.
Julie
There is nothing in the DWP press release that indicates this construction of events. You would think that there would be some direct evidence they could quote.
See the annulment debate to which reference is made at http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110316-0003.htm. This took place on 16 March - long after the date referred to in the MEASscation website - and shows that the motion for the annulment was withdrawn.
Will people who completed the IB50 and are still waiting for their medical at 28th March be assessed on the new ESA test or the old incap test?
Good question. We were told by DWP that no PCAs would be carried out after 28 March because they would have finished all the outstanding ones by then. No idea if that is what has happened in practice though.
Re: ‘There is nothing in the DWP press release that indicates this construction of events. You would think that there would be some direct evidence they could quote.
See the annulment debate to which reference is made at http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110316-0003.htm. This took place on 16 March - long after the date referred to in the MEASscation website - and shows that the motion for the annulment was withdrawn.’
There is an Early Day Motion
http://www.parliament.uk/edm/2010-11/1651
which is still looking for annullment. I’ve spoken to JCP and they are using the new ESA50 which is based on the new legislation.
Julie
The regs essentially say that the new test applies where the WCA determination is made on or after 28th March. There is an exception for those who were sent a questionaire relating to the previous version of the schedule before 28th March but this would not seem to apply where someone is sent a new version of the ESA50. The wording is
“2(2) Where before 28 March 2011 a questionaire relating to the previous version of Schedule 2 to the ESA Regulations was issued to a person in accordance with regulation 21(1)(b) of those regulations (information required for determining capability for work) regulation 4(1) does not apply to that person for the purposes of making a determination as to limited capability for work under part 5 of the ESA regulations.”
On a literal reading this would mean that if you had the old ESA50 any time in the past, even on a WCA from a couple of years ago, the new schedule 2 would not apply to you!
Heres a ling to the amedment regs:
I am having a bash at getting an old form through for a client now based on this, has anyone else done this with any success?
No good…
Did you have a go at arguing this at tribunal Ryan?
I noticed that I have two versions of 2011/228. In the first version I have the exception where the previous version ESA50 was sent out only applies where it was “in connection with that examination or determination” (ie the latest one). This version was laid before parliament 10th Feb. It seems they then redrafted it and laid the current version before parliament on 16th Feb with a simplified reg 2 and without the phrase “in connection with that examination or determination” (actually all references to examination are removed, which makes more sense but is a different issue). This is the version in the blue books and on the opsi site. I don’t know where I got the 10th Feb version from - I may have printed out a copy back then when it was laid.
I’m not sure about the argument but plan to use it as a ‘back up’ argument in appeals.
morning all,
i’ve had a client win his ESA appeal on 03/08/11, 15pts from activity 1 alone,. the date of the DuA was oct ‘09 and the fTT decision read “...descriptor satisfied under schedule 2 is 1(b) awarding 15pts” with no sched3 applying.
client has effectively lost out on the support group as post-march’11 regs would have given sch2 1(a) i or ii with sch3 1(a) or (b) - 50m max walking was not in question as this was a joint appeal with DLA awarding HRM also
i was going to seek a supersession but having read this thread can see that the post-03/11 wont apply until next WCA. with the length of time taken to win this 1st appeal and the effect it had on my clinet’s emotional stabillity i wouldnt want to force another WCA an risk yet another nil point appeal case…..