re-claiming ESA

My client was claiming ESA, went through all the hoops to be found not to have a limited capability for work on 26/11/09.
She claimed ESA pending an appeal.
She lost the appeal 14/04/10 (paper hearing as would not attend). Written reasons show no grounds for appealing further.

She has since claimed JSA.

She is not well enough to work, but her condition is the same as before.

When can she make a new claim for ESA?

1) is it based on date of DWP initial decision (26/11) OR

2) based on date of tribunal decision (14/04) - which in essence agrees with the decision of 26/11 OR

3) because she has been claiming ESA pending appeal, does this scupper the dates - therefore is it from date of tribunal .

I think I know answer to be 3 - please either confirm my thoughts or more hopefully tell me something better.

thank you

My understanding is that the new ESA regs that came into force from the 28/6/10, mean that the relevant date is the initial decision, so in this case 26/11/09. It does not matter she was getting ESA pending the tribunal decision.

Benefit Delivery Centre’s (BDC) were issued guidance about this in memo DMG 33/10. And from conversations I have had with our local BDC in Halifax I am confident they would accept and pay a new ESA claim from your client. Of course getting through the madical will then become her next issue.

The DWP regard the ESA awarded pending appeal as a new award which requires a decision to bring it to an end.  That decision in this case would be a supersession likely to have been made a few days after the appeal was disallowed.  The supersession would have incorporated a determination that the claimant did not have limited capability for work.  That supersession would, according to the DWP, have been appealable, apparently allowing ESA to be claimed again pending that further appeal.  In the absence of such an appeal, however, a new claim for ESA would appear on the facts to be caught by the 6 month rule in Reg 30(2) ESA Regs.

I suppose you could try a late appeal against the above supersession, although the fact she has claimed JSA in the intervening period may cause some problems with being paid ESA pending the appeal should it be admitted late.

From 28/6/10, the date of amendments to the ESA and other Regs, I think it’s less clear whether the 6 months rule catches new claims in the above scenario.  Reg 147A(5) suggests that the above supersession would now incorporate a decision that the claimant is treated as not having LCW.  That is arguably different to a determination that a person does not have LCW under Reg 19.  It appears a minor difference, but it could possibly be an important one because under Reg 30(2) you cannot be treated as having LCW within 6 months of either a determination that you are not LCW or a determination that you are treated as not having LCW, but in the latter case, only under Regs 22 or 23, ie not under Reg 147A(5). 

The tribunal decision upholding the original ESA decision is also not a determination for the purpose of Reg 30(2) – see R(IB) 8/04.

So where the above type of supersession is dated on or after 28/6/10, one option would be not to bother appealing it at all. After all, in order to be paid ESA pending such an appeal you now need to make a new ESA claim anyway – see the amended Reg 3(j) Claims and Payments Regs 1987.  Instead, it might be better just to make a new ESA claim and argue that it is not caught by Reg 30(2) for the above reasons.
 
The other thing is, as has been mentioned in past threads, Reg 30 ESA Regs as with the old Reg 28 IB Regs only prevents someone being paid ESA whilst they await a determination proper of their LCW.  If your client undergoes another WCA in the very near future and passes, she can of course then be paid ESA irrespective of the fact that she’s still within 6 months of April 2010 when the supersession in your case was made and regardless of the fact that she has no worsening of condition etc.

As things stand, I respectfully disagree with Darran, though I haven’t read the latest DMG.  I’m afraid it looks to me like you’re right – the answer appears to be (3) but for similar scenarios in future the answer might well be (1).

My client was refused ESA after reapplying after a failed appeal.  The original decision on the claim he was appealing was made in July 09. The DWP have turned down the new claim on the grounds that he has not had a change in condition or a new condition within 6 months of failed WCA. They took the 6 months from the appeal date (May) rather than the original decision last July.  I have appealed this as I believe the 6 months should have started from July 09 not May 2010, the new guidance that was issued with th 28th June regs actually gives some examples on new claims after appeals which supports that the original decision is the key date in relaion to the 6 month rules.

The ESA Regs are a mess and I was originally persuaded by Tom’s point but something was still niggling me.  Then it came to me after reading CHC’s post.  The determination that the claimant does not have LCFW underpinning the supersession on the new ESA claim (the one made pending the appeal) was obviously made in connection with the previous WCA (and was thus made more than 6 months ago).

I’m not convinced that the new claim for ESA is a new claim for the purposes of reg 23 as, first, a new claim does not have to be made and, therefore, the new award is not based on a claim in the traditional sense, and, second, the new award of ESA is made under reg 6 and merely allows the assessment phase to continue.  It does not necessarily allow for a new WCA under reg 23 and I’ve not yet heard a case where one has been carried out on the similar facts of this case.  Exactly the opposite happens.  A person loses the appeal and the award of ESA is brought to an end suggesting the new award is not one which brings reg 23 into play.  If that is right, then the “treated as” condition in reg 30 does not apply and the 6 months should run from the date of the original WCA.

I’ve not had chance to look at this properly yet so the above is a tentative, initial view.

I’ve clarified it a bit more in my head now.  As I said above the determination that the claimant does not have LCFW underpinning the supersession on the new ESA claim (the one made pending the appeal) was obviously made in connection with the WCA (and was thus made more than 6 months ago).  Reg 30 says the 6 months also runs from the day that “the claimant……is to be treated as not having limited capability for work under regulation 22 or 23”.  This clearly doesn’t apply as the claimant has not failed to supply information or failed to attend a medical so regs 22 and 23 have no application at all.  So the 6 months must run from the day that it was determined that the claimant did not have LCFW, i.e. the date of the last WCA.  So the clock starts from the date of the DWP decision on the first claim.

I think we are all to some degree correct. Tom H’s first paragraph describes the situation pre 28/6/10. I have a colleague who has got a set of appeal papers relating to one of these supersessions, they are relying on the original and only medical which I think is now almost 12 months old. It will be interesting to see what a Tribunal Judge makes of it.

Nevip is correct in stating that the ESA regs are a mess. Which is why I am more concerned with the guidance issued to the BDCs than I would normally be. And CHC correctly points out that recent guidance gives examples where the 6 months starts from the original decision.

So efloyd’s client should be paid ESA from the date of any new claim she makes.

We’ve recently put in a new ESA claim for a client who is appealing a WCA decision but whose condition has worsened.  We did this so that he will leave the assessment phase as soon as possible, even if his appeal against the initial award is unsuccessful.  The DWP wrote to the client offering him a choice between making a new claim and withdrawning the ongoing appeal.  We could find no legal basis for asking the client to choose, and therefore wrote back to the DWP asking them to explain why they thought this was necessary.  We await their reply with interest.

When I first posted a response I hadn’t read DMG 33/10.  I had briefly looked at DMG 7/10 which would have been the relevant guidance in place at the date of the query, ie, in/around 14/4/10.  I, like Darren, have concerns about the DMG generally, eg DMs thinking it represents the law rather than simply a non-binding interpretation of it, however, I tend to reluctantly follow the guidance unless I can disprove it. 

First, when I said I disagreed with Darran it was only in respect of the position pre 28/6/10.  Having now read DMG 33/10 which replaces DMG7/10 above, the position post 28/6/10 appears to be as Darren and I stated earlier.  Interestingly, what I had thought was a potential loophole in the law, created through the new Reg 147(A)(5) ESA Regs, turns out to be very much the intention of the DWP after all.  That is to say, they have provided for many new ESAs claims to escape the 6 month rule either by virtue of Reg 30(3) or by virtue of Reg 30(2).  An example clarifies what I think will happen post 28/6/10 as well as confirming, as Nevip says, what a mess it all is:

(i)  T claims ESA for the first time via the contact centre and is awarded it from 8/7/10
(ii)  Fails medical and DM supersedes entitlement from 15/10/10.  The supersession embodies a determination made under Reg 19 ESA that T does not have LCW
(iii)  T appeals the decision in (ii).  Because the decision in (ii) concerns an ESA award for which T had had to make a claim, T does not need to make a new ESA claim pending this appeal.  The is due to the amended version of Reg 3(j) Claims and Payments Regs 1987. 
(iv)  T is awarded ESA from 16/10/10 (ie the day after his last award ended).  There is no provision in the ESA Regs for this new award to be treated as a continuation of the first award which ended in (ii) above.  Further, because T is pursuing an appeal in (iii) above, this new ESA award escapes the 6 month rule by virtue of Reg 30(3) ESA Regs.
(v)  A tribunal on 10/12/10 upholds the supersession made in (ii) above and notifies the DM of this the same day.
(vi)  The ESA award in (iv) above is superseded.  The supersession includes a determination that T is treated as not having LCW in accordance with Reg 147(A)(5) ESA Regs.  The DM making the supersession relies on the unsuccessful medical used in (ii) together with the above tribunal’s findings of fact. The supersession is effective from 13/12/10 (ie, the first day of the benefit week following the tribunal’s above notification – see Reg 147(A)(5)).
(vii)  Because the supersession in (vi) concerns an ESA award for which T had not had to make a claim, T, if he wants to remain on ESA, has to make a new claim for it (eg via contact centre).  Appealing the supersession in (vi) will not excuse T from having to make a new ESA claim.  This is because of the amended Reg 3(j) Claims and Payments Regs above.
(viii)    T makes a new claim and is awarded ESA from 15/12/10.  This claim escapes the 6 month rule because the supersession in (vi), embodying as it did a determination made under Reg 147(A)(5), is not caught by Reg 30(2) as the latter only concerns determinations made under Regs 19, 22 or 23 ESA Regs.
(ix)  And it goes on……

To return to EFloyd’s problem, I still disagree with Darran and with Nevip.  The claimant’s ESA pending appeal would have been superseded on the grounds of a change of circs, effective from the date of change.  The change was that a DM, presumably relying on the previous ESA medical and tribunal findings, determined under Reg 19 that the claimant was not LCW.  The supersession would, therefore, have been effective from around 15/4/10 and that is the date from which the 6 month rule runs.

Because she wants to claim ESA now without having appealed the above supersession, she is clearly caught by Reg 30(2) because she cannot be exempted under Reg 30(3).  She is able to salvage the situation by making a late appeal of the supersession dated 15/4/10 as I said in my earlier post.  She is then in an identical position to the claimant in the example provided by para 11 of DMG 7/10 even down to the claimant in the example concerned having claimed, like EFloyd’s, JSA subsequently.

My head hurts.

Hi Tom

I remain unconvinced.  In my view the second ESA award was not superseded on the ground you suggest but on the ground that the assessment phase had ended because the appeal had been determined (as per reg 6).  That was the change of circumstances.  There was simply no need to make any further findings of LCFW and anyway that could only be done by a fresh WCA.  As the tribunal had upheld the original determination that the claimant did not have LCFW then entitlement had merely been extinguished as of that date.  The supersession process was simply a mechanism to lawfully end the second award.

Reg 30 states that a determination that 6 months must have passed since the last determination that the claimant did not have LCFW.  I remain of the opinion that there has been only one such determination and that was the WCA that led to the original appeal.

Regards
Paul

Hi Paul

The problem is that there is no provision allowing the original ESA claim to continue once it is superseded. 

I don’t agree that Reg 6 ESA Regs is the mechanism under which the new ESA claim is made.  Section 24 Welfare Reform Act 2007 provides for entitlement to ESA and effectively requires a new claim unless such a claim can be exempted by a regulation such as Reg 3(j) Claims and Payments Regs. 

There appears no provision allowing for an award of ESA to be extinguished without a new determination.  Reg 21(2) ESA allows a DM to make a determination that you are not LCW without requiring a new questionnaire or medical.  Whether that’s a wise approach to take may depend on how recent the last medical etc was.  A tribunal might obviously attach less weight to a medical several months old (EFloyd’s client’s medical was about 6 months’ old at the date of the supersession and the tribunal’s findings in her case would only have been a few days old at best).  But it’s not as if the client is asserting that there’s been a change of circs between the start and finish of the award of ESA pending appeal.

I think that Reg 6, now obsolete following the amendments to the ESA Regs, although applicable pre 28/6/10, merely prevents, under linking rules, the period of limited capability for work re the new ESA claim from linking to the period of limited capability under the old one.  DMG 7/10 para 22 takes the view that a new assessment phase commences when the new ESA award pending appeal starts.  That seems a fair reading of Reg 6 to me.

We’ll have to agree to disagree I suppose, but good debating with you.  Take care.

And you.  Hope your head gets better soon.  Lol!

As a postscript, and sorry to everyone if I’m starting to hurt your heads by now, I’ve just realised that in that long example I gave earlier re the process post 28/6/10, the new award in (viii) whilst not caught by the 6 months’ rule in respect of the supersession decision in (vi), would nevertheless be caught by the same rule on the basis that the award in (viii) is within 6 months of the supersession decision in (ii).  And it could not escape via Reg 30(3) because the appeal in respect of (ii) would have been determined by the date the award in (viii) is made – see the exact wording of Reg 30(3).

Obviously, the dates I used in the example were not exactly realistic, eg, 3 months from losing the award to getting to a tribunal, however, I’m starting to see the DWP’s grand plan I think.  I had expected them to attempt to stop the eternal chain of appeals and new claims that was possible prior to 28/6/10.  And I had been surprised that the ESA Regs as amended had appeared, if anything, to make it easier to avoid the 6 months’ rule.  Alas, no.  Claimants wishing to stay on ESA without worsening of condition etc may well be reliant on it taking at least 6 months to get to tribunal re the original award.  Or else attempt to rely on the judgment, whose reference escapes me, which held an appeal was not finally determined until considered by Commissioners, now the UT.

For the avoidance of doubt I did not say that the second award of ESA was made under reg 6.  I said that the second award of ESA was superseded by the operation of reg 6.  That is crucial and reg 6 is not otiose.  The following is lifted from the DMG.

“Example 1
Ewan’s entitlement to ESA is terminated on 6.7.10 after application of the WCA. He
makes an appeal, and is awarded ESA from 7.7.10. His appeal is dismissed on
18.11.10, and the DM treats him as not having LCW, terminating his award of ESA
from 14.12.10. Ewan makes a further claim for ESA on 30.12.10. As this is within six
months of the DM’s determination of 6.7.10 that he did not have LCW following
application of the WCA, Ewan cannot be treated as having LCW pending application
of the WCA.

Example 2
Amy’s award of ESA is disallowed from 7.7.10 after application of the WCA. She
becomes entitled to ESA from 7.7.10 after making an appeal against the disallowance.
Her appeal is dismissed on 15.12.10, and the DM treats her as not having LCW from
5.1.11. Amy makes a further claim for ESA on 10.1.11. This is more than six months
after the previous determination that she did not have LCW following application of the WCA. Amy is treated as having LCW pending application of the WCA.”

I think that guidance is perfectly clear on the point and it implies that decisions superseding the second ESA awards do not embody a second determination that the claimant does not have LCFW as the claimant would then fall foul of the 6 month rule and render the guidance an absurdity.

And, by the way, I think thats always been the position.

Hi Paul

The two examples you quote, from DMG 33/10 para 53, with respect, do not apply prior to 28/6/10. 

Before 28/6/10, the ESA pending appeal was, in the context of this thread, almost always ended by a determination that the person had LCW under Reg 19.  That was because the other means of ending the ESA pending appeal, ie the events in Reg 30(1)(b) or (c), would normally have triggered a supersession or revision completely independent of the outcome of the appeal against the original ESA decision, and probably well beforehand.

Nothing, consequently, stopped the claimant banging in an appeal and claiming ESA pending that appeal.  The new ESA would escape the 6 months’ rule under Reg 30(3).  Even if the DM then stopped the ESA pending appeal on the strength of previous medicals etc, the claimant could each time simply bang in a new appeal against the last determination and claim ESA pending that further appeal. 
Because the last determination was, each time, made under Reg 19, the new ESA claim would be exempted from the 6 month rule under Reg 30(3) each time.  It was potentially infinite – an eternal round of new claims and appeals.

This eternal chain was broken in eFloyd’s case because the client did not appeal the last determination.  She can restore that chain by appealing late.

The major difference after 28/6/10 and the provision which potentially stops the eternal chain is Reg 147(A)(5).  The last determination is made under Reg 147(A)(5) rather than under Reg 19 quite quickly into the chain (see point (vi) of my example in my earlier posting – which incidentally feels like a lifetime ago).  Consequently, the claimant’s new ESA cannot be exempted under Reg 30(3) and it will only be awarded if it is more than 6 months from the date of the loss of the original award.  That is all, with respect, Nevip that Examples 1 and 2 of para 53 DMG 33/10 are illustrating.  I made this very point in my postscript earlier.

Ironically, para 53 is just supporting what I’m saying. 

I’ll grant you this.  Whether the post 28/6/10 changes achieve their purpose will depend on whether a determination that a claimant is treated as not having LCW under Reg 147(A)(5) is not a determination for the purposes of Reg 30(3) as the DWP contend in para 53 of DMG above.  Reg 19(1) whilst not defining “determination” at all, does provide that the WCA referred to by a determination is contained in “this Part”, ie Part 5 of ESA Regs.  Reg 147(A)(5) is found in Part 11.  So I think the DWP may be right.

Anyway Paul, I thought you were going to leave me alone to recuperate.  Have a good weekend.

Tom

On reflection, I think the DWP’s interpretation of the law pre 28/6/10 on re-claiming ESA may be wrong.  I relied on their interpretation (DMG 7/10) in my earlier posts because I hadn’t been able to disprove it. 

On re-reading this thread from the start, I also think that it’s really only the law pre 28/6/10 that there’s a disagreement about.

eFloyd’s client’s original award of ESA ended on 26/11/09.  She appealed and was awarded ESA pending that appeal.  The basis of the latter award must have been Reg 30(1) ESA Regs, ie she was treated as having LCW whilst appealing. 

Her appeal is then dismissed by a tribunal on 14/4/10.  The DWP effectively contend that, despite this dismissal, the claimant must continue to be treated as having LCW under Reg 30(1) until either Reg 31 (a), (b) or (c) applies to her. 

A few days later, the DM performs a WCA without the benefit of a further medical and makes a determination under Reg 19 that she does not have LCW.  The Reg 19 determination means that Reg 30(1)(a) applies stopping her being treated as having LCW under Reg 30(1).

My problem with the above approach is that the award of ESA pending appeal cannot, it seems, survive the dismissal of the appeal.  That’s because the appeal is, from that moment, “determined” for the purposes of Reg 30(3).  She can no longer, therefore, receive the protection which Reg 30(3) gave her against the 6 month rule found in Reg 30(2)(b).  Her award of ESA which ended on 26/11/09 is caught by Reg 30(2)(b). 

The basis of her ESA pending appeal was that she was treated as having LCW under Reg 30(1).  As Reg 30(1) is subject to Reg 30(2), the ESA pending appeal must end on 14/4/10.  And it seems the only way it can be ended is by a determination under Reg 30(1) that the client cannot be treated as having LCW because the condition in Reg 30(2)(b) is not met.  The supersession embodying that determination would be effective from the date of change, ie 14/4/10.

If that is correct then a new claim for ESA made today, 16/8/10, would escape the 6 months rule because Reg 30(2)(b) only catches previous determinations made under Regs 19, 22 or 23, rather than one made under Reg 30(1) as here.  The 6 months for eFloyd’s client appears to run from 26/11/09 meaning the new ESA should be payable immediately.

The first problem, however, as CHC found, is that the DWP are unlikely to accept the above argument, deciding instead that it’s Reg 19 not Reg 30(1) that determines the above ESA award.  That would mean the earliest ESA could be paid on a new claim would be 14/10/10 (ie 6 months after 14/4/10).  Unless you could expedite an appeal against that decision, I think there’s nothing to lose in making a late appeal against the supersession embodying the purported Reg 19 determination and applying for ESA on the strength of that appeal.  It keeps your options open.

The 2nd problem is that even if the DWP concede that the award of ESA pending appeal was determined under Reg 30(1), I can see them arguing that the related ESA claim itself survived that determination, allowing a DM to determine it subsequently under Reg 19.  That’s because under the comparative 6 months’ rule in IB, the IB claim survives the determination under Reg 28 that it doesn’t satisfy the 6 months’ rule, obliging a DM to later act upon the claim, eg, by awarding IB when the 6 months’ ban is up.

I think, however, that the present ESA scenario can be distinguished from IB, aside from the fact that Reg 28 IB is not in identical terms to Reg 30 ESA anyway.

First, because the ESA claim resulted in an actual award of ESA pending appeal.  In IB there is no intervention of an award between the IB claim and its eventual determination on the expiry of the ban.

Second, because the requirement that an ESA claim be made was waived by Reg 3(j) C&P Regs on the condition that the claimant had made and was ‘pursuing’ an appeal.  In IB, a claim is made.  The ESA claim appears, therefore, to lose the protection of the above waiver from the date the appeal is dismissed.

And, unrelated to IB, Reg 19(7) and (8) ESA Regs govern when a DM can return to determine an award afresh.  Because the award of ESA pending appeal is definitely made under Reg 30(1), irrespective of whether it also ends under that provision, it seems (7) and (8) prevent the DM making any Reg 19 determination on it.

I think the above is significant for re-claiming ESA post 28/6/10 as well.  For instance, in example 2 of para 53 DMG 33/10 which nevip mentioned earlier, Amy’s ESA award appears to occupy a legal no-man’s land between the date she loses her Reg 30(1) status when the appeal is dismissed and the date the DM gets round to determining the claim under Reg 147(A)(5) about 3 weeks later.  That’s why I think the DWP may argue that the claim survives.

And finally, as far as Christi’s client is concerned, the DM must after 28/6/10 make a new determination under Reg 19 on the worsening condition by virtue of Reg 147(A) (2) and (3)(b) ESA Regs regardless of the fact the appeal against the original decision is ongoing.