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

WCA pending ESA appeal

Girdy
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I have a few clients who are claiming assessment rate ESA whilst waiting for their ESA appeal and during this period have a further medical assessment, again failing to score 15 points. If they loose their appeal do you think they can reclaim ESA, because more than 6 months have paased since the decision inder appeal or will they have to wait 6 months from the date of the most recent assessment, which ocurred pending the appeal.
I hope that makes sense!

Damian
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I think the answer to Girdy’s question is in reg 147A. The difference between a decision, which is whether you get a benefit at a certain rate, at a different rate or not at all, and a determination which is one of the little building blocks that are part of the decisions: whether you have LCW or whether you are living together as husband and wife, whether you have a right to reside etc.

If someones condition gets worse or they get a new ailment para 3 allows a new WCA. Following this the SoS makes a determination. If the claimant is then found fit para 4 says “this regulation and regulation 30 apply as if that determination had not been made” so that the finding does not affect that persons continued benefit whilst waiting for the appeal to be heard. The problem for Girdy’s clients is that para 4 starts “Where this regulation applies” and reg 147A deals with situations where a claimant is appealing so once the appeal is heard I don’t think it has any lasting effect. After their unsuccessful tribunal I think they would be caught by the fact that there was a ‘determination’ in the previous 6 months even though it was disapplied whilst waiting for the appeal hearing. The funny thing about this, is that the date of a determination is not usually recorded. It is not the same as the date of the assessment which must be earlier and will not always be that same as the date of decision. It’s a bit awkward to have any rule which relates to a ‘date of determination’.

Girdy
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I would like to thank everyone for their help. My most recent client in this situation failed WCA on 03/08/2010. She was receiving assessment rate ESA pending her appeal. She did not make a new ESA claim. Her appeal was heard on 05/04/2011 and was unsuccessful. In December 2010, she was sent afurther ESA 50 and underwent a limited capability for work related activity assessment January or February 2011. She has not yet received a decision regarding the points given following this assessment. If the most recent assessment gives her less than 15 points is it appealabe even though it ocurred during a period when client was waiting for an appeal regarding a decision made 03/08/2010 and even though it was not carried out in respect of a new claim. Also will this assessment have any effect on a new ESA claim?

Damian
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The tribunal decision now only relates to the period up to the appeal. From then on entitlement to benefit is based on the unlinked claim which is treated as made by appealing. If the tribunal allows the appeal this can lead to WRAC or perhaps SC. Once the tribunal has made a decision the DM has to make a decision about what to do with the ‘new claim’. What the DM does is governed by paras 6 & 7 of reg 147A. Where the appeal is successful the DM has to adopt the tribunal determination on capacity for work unless there has been a change of circumstances. So in your case the DM might decide on the basis of the new WCA that there has been such a change and so they are allowed to make a different finding from the tribunal, possibly refusing ESA. However this is a new decision which is appealable and I think they can then be treated as LCW under reg 30 whilst waiting for their appeal to be heard. If they just did a new claim instead I think they could get caught out by the determination on the last WCA being within 6 months. That determination has probably been made but not notified because they got less than 15 points so the bit in para 4 which I mentioned in my other post applies. Sorry this post is a bit waffly.

Girdy
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Please forgive my confusion! My client failed her ESA appeal 05/04/2011. She did not receive the result of the assessment, which was carried out pending her appeal. This assessment was made even though she did not make a new ESA claim. As she lost her appeal her assessment rate ESA has stopped. We are now concerned about which benefit she is better off claiming. We know that she can accept the TS decision and claim JSA, however, she still feels unfit for work. More than 26 weeks have elapsed since the decision which was under appeal, so normally she would have no problem initiating a new ESA claim. However, we are still not sure how the most recent assessment - carried out while waiting for the appeal, will affect a new ESA claim, as it was carried out less than 26 weeks ago and she has not been given the result of that assessment.

Damian
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Para 2 of 147A seems to envisage the possibility of using reg 19 in such cases and I think this would be because it is an initial determination. It is after all a new claim!  I don’t think there is any significance in 4b, I think it is just covering different found fit circumstances along with 4a so that a person who is found fit on a new WCA continues to get ESA whilst waiting for the appeal to be heard.

In terms of what Girdy’s cient can do I think that the situation is that there are two decisions:

1. The tribunal’s decision that he does not have LCW. This affects the ‘old claim’ only and not the period after the appeal was treated as a new claim.

2. The DMs decision, made under para 6 or 7 of reg 147A. This may be based on the later WCA rather than the one which was subject to the appeal. This decision can be appealed to a tribunal.

There is some doubt about whether there has been a second WCA determination in Girdy’s client’s case. If there wasn’t, then he could make a new claim and be paid. If there was he can appeal against the latest DMs decision and be paid whilst he waits for an appeal to be heard.

……I think!

Girdy
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Again thank you.
I don’t know if this is happening inother areas, but I’ve had at least 3 clients who have had further WCAs pending ESA appeals, despite not having made a new ESA application and I’m still not entirely sure why or how these assessments affect ESA entitlement if their appeal fails.

Tom H
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Girdy - 13 April 2011 09:19 AM

.... I’m still not entirely sure why or how these assessments affect ESA entitlement if their appeal fails.

The law does not allow a re-assessment of LCW in the present circs unless the DM is satisfied that the claimant has a new or worsened condition - Reg 147(A) (2) & (3).  Assuming the DM did feel there was a worsening etc, the failed re-assessment is only relevant where the claimant wins his appeal against the original ESA decision.  In that situation, the DM is not bound to treat the tribunal’s decision as conclusive for the purpose of the later ESA (ie the ESA he was claiming whilst appealing) - Reg 147(A)(6) & (7).  So he can use the re-assessment to end the later ESA despite the claimant having won his appeal.

However, where the claimant loses the appeal against the original ESA decision, the DM appears bound, even where there’s been a re-assessment of LCW prior to that appeal being heard, to end the later ESA on the ground set out in Reg 147(A)(5) and no other ground.  Reg 147(A)(5) provides:

“(5) Where this regulation applies and–

(a) the claimant is entitled to an employment and support allowance by virtue
of being treated as having limited capability for work in accordance with
regulation 30;

(b) ......, the claimant has been determined not to have limited capability for work; and

(c) the claimant’s appeal is dismissed…..,

the claimant is to be treated as not having limited capability for work with effect from
the beginning of the first day of the benefit week following the date on which the
Secretary of State was notified by the First-tier Tribunal that the appeal is dismissed,
withdrawn or struck out.”

It’s the wording “is to be treated” which suggests the DM has no discretion to end the ESA pending appeal under any other ground.  After all, 147(A)(5) is not subject to para (7) in the way that 147(A)(6) is.

Damian
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That’s a good point about para (5) It only operates where there isn’t a deterioration / new condition: “neither of the circumstances in paragraph 3 apply”. So there is para 5 for cases where the condition isn’t worse and the appeal is lost, para 6 where the appeal is successful and nowt’s changed and para 7 where the appeal is successful but there has been a change of circumstances in the meantime. I think the effect of para 4 is that the determination on the new WCA is ignored where the claimant fails so that these people would be dealt with under para 5. I also think this has the continuing effect of making the new WCA invisible on any new claim for reg 30 purposes (unlike that daft bloke with a name a bit like mine who said different above) because it was determined whilst reg 147A applied.

So I thinks this leaves us like this:

1.Fail WCA, appeal, no change, appeal lost: para 5 applies and claimant is treated as having unlimited capability for work . Not a determination which falls foul of the 6 month rule so can be paid on a new claim

2. Fail WCA, appeal, new condition but fail new WCA, appeal lost: para 4 applies, new determination ignored allowing para 5 to apply. para 5 determination is not a determination which falls foul of the 6 month rule so can be paid on a new claim. The ignoring bit in para 4 stops the intervening determination getting in the way.

3. Fail WCA, appeal, no change, appeal won: para 6 applies, tribunal determination adopted, client gets ESA

4. Fail WCA, appeal, change of circs (condition improves) , appeal won: para 7 applies. Tribunal decision adopted as far as is appropriate with a new determination from the date of change. This decision can be appealed and can get benefit whilst appealing, but there would be a new, recent, WCA determination to get in the way if the claimant just claims again.

This only leaves the people who get found to have LCW on the new WCA. I think this simply means a supersession with them put in whatever group: WRAG/SG & tribunal dealing with a closed period.

So for Girdy’s clients No. 2 applies and they can put in a new claim and expect to be paid whilst waiting for the next new improved WCA.

Do you reckon this is right?

Girdy
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Again thank you, but pending each of their ESA appeals non of my clients reported a change in their condition, so I don’t understand why the DWP required each of them to undergo another WCA.

Damian
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It does seem a bit odd that. I wonder if anything else triggered it off, like the doctor putting something slightly differently on the sick note. If it’s happening a lot it could be useful to try to find out from the decision maker. Wandering off the subject a bit, if the condition is no different the new ESA50 could potentially have been useful evidence for the tribunal if it gave reason to doubt the earlier one (conflicts etc.).

Tom H
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Girdy - 13 April 2011 02:45 PM

.... but pending each of their ESA appeals non of my clients reported a change in their condition, so I don’t understand why the DWP required each of them to undergo another WCA.

Nor do I.  Reg 147A(2) clearly prohibits any new WCA determination prior to appeal without the requisite worsened/new condition.  That doesn’t, of course, prevent the claimant being sent for a new ESA medical whilst waiting for his appeal.  But should that medical not suggest any new or worsened condition then the DM would appear unable to use it as the basis for a new WCA whilst the appeal is outstanding.  He may make that new WCA after the appeal is heard but, as mentioned earlier, only where the appeal is successful.

DWP guidance suggests that the DM may seek advice from ATOS about whether there has been a worsened/new condition, ie before sending claimant for a medical.  I don’t know whether that was done here.  If not and the medical does not suggest worsening etc then the any purported WCA determination would appear invalid whilst the appeal is outstanding.

Interestingly, Reg 6(2)(r) D&A Regs appears to allow the DM to supersede an ESA decision based purely on receipt of a new ATOS medical report, ie without the need for the DM to make a new WCA based upon said report.  However, that would appear to be ultra vires for the reasons that IB Reg 27 was found ultra vires in ex parte Moule - see discussion of Moule in Vol 1 of Legislation at page 880.

Girdy, as Damian suggested earlier, I think your client can simply re-apply for ESA and, provided that claim is more than 6 months since the original ESA ended, he should be paid.

[ Edited: 13 Apr 2011 at 06:38 pm by Tom H ]
Tom H
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Edit: I see that Reg 7(38) D&A Regs (concerning when a supersession made under Reg 6(2)(r) takes effect) re-introduces the DM so that the supersession does not fall foul of the principle in Moule, at least where it’s the first such determination of LCW etc: 

“7(38) A decision made in accordance with regulation 6(2)(r) that embodies a determination that the claimant has–
(a) limited capability for work; or
(b) limited capability for work-related activity; or
(c) limited capability for work and limited capability for work-related activity

which is the first such determination shall take effect from the beginning of the 14th week of entitlement.”

Girdy, I suppose the DM might have sent your clients for new medicals not to check whether they were worse but whether they were in fact better.  If so, then Reg 147A(2) would still appear to prevent a new assessment of LCW whilst the appeal is outstanding. 

However, whilst receipt of a new medical report prior to the appeal is not itself a change of circumstances for the purposes of Reg 6(2)(a)(i) D&A, it might contain clinical findings which suggest an improvement in condition which could represent a change of circs. However, the issue would then be whether a supersession under Reg 6(2)(a)(i) requires a new WCA in the way that a supersession made under Reg 6(2)(r) via Reg 7(38) above does.  If so, then Reg 147A(2) would appear to prevent the making of the WCA required.

However, it’s academic here because, whilst both clients sat new medicals pending their appeals, those appeals were dismissed.  As stated earlier, the DM would appear unable in those circumstances to make new WCAs based upon the new medicals because he is bound to end the awards of ESA pending appeal under Reg 147A(5) rather than under Reg 19(2).

[ Edited: 14 Apr 2011 at 04:17 pm by Tom H ]
AndreaM
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I just had my first client who just received another ESA50 pending an appeal against failed previous WCA. I don’t think there is any evidence of deterioration.
As suggested in previous posts, I thought reg 147(A)(2) and DMG 33/10 @ para 44 meant that there should be no determination about LCW until the appeal has been decided. 
My client’s 1st WCA was still under the old descriptors, the ESA50 she has received now is the new version.  IMO she has quite a good chance of success under the old rules but less so under the new rules.
From what I can work out, the 2011 amendment regs do not revoke regulation 147(A)(2), so should the old guidance not still apply and my client should not be reassessed until appeal has been determined?  Do people think it is worth writing to JC+ about this?

Damian
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147A (2)only prevents a determination. It doesn’t prevent evidence gathering for a future determination. So presumably the DM can send out questionaires and arrange medicals in the interim but except where 147A (3) applies they then have to sit on their hands until the tribunal passes judgement. Presumably it can then be used to make a decision under para 7 if the claimant wins. In this situation they would need to appeal against the new decision in order to get benefit whilst they wait for another hearing.

Josephina
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Andrea M is right. I think we need to challenge this, or it will become an implicitly acceptable practice.