6-month rule: is this open-ended?

Claimant is on ESA in April 2013.

Goes to his consultant who tells him it’s OK to apply for work, expected surgery will not be needed.

Gets a job; phones JC+ to tell them and asks them to close his claim.

Job start date is the same as his Atos examination date. Doesn’t attend, for obvious reasons.

Within 6 months is ill again (same condition) - claims ESA October 2013 - JC+ refuse to pay till he has had Atos examination.

Still waiting for Atos examination despite MP intervention. No money. Desperate.

JC+ say they cannot pay till he’s been seen by Atos; they say no good cause for not attending as they asked him why and he didn’t tell them.

I have argued he had good reason not to attend Atos and he told JC+ what was happening - he did exactly what they wanted and got a job!

By JC+ reading, the ‘6 months’ from a decision under ESA regs 23 and 30 becomes infinitely extendable providing Atos do nothing about arranging an examination.

My argument is that there was good cause anyway (late appeal) but also that R(IB)8/04 applies, that the 6 months rule should be applied day by day dating back to the decision, and any day falling 6 months+ from the date of the decision should be a date for payment.

Furthermore I should have expected that going from OK to work to incapable of work represents ‘significant worsening’.

I’ve quoted the Commissioners’ Decision to JC+ but they say ‘we don’t do Commissioners’ Decisions’ and wil simply try to get Atos moving.

Any thoughts?

If the notification under reg 23 was given after he contacted them then try putting it to them that the failure to supersede the original awarding decision based on change of circumstances is an error of law and that the exercise of reg 23 was therefore unlawful on the back of that.  And, that the failure to attend under reg 23 should therefore be revised as official error.

Call from JC+ - because client did not call Atos (they won’t accept a call to JC+) and did not reply to letters from JC+ about non-attendance they maintain they are right.

A DM has apparently denied the existence of the CD in question - details have just been faxed to them.

JC+ claim also to be entirely in the hands of Atos, who want to write to client’s GP first, to establish if they need to see him or not. They will then arrange an appointment if they think it is needed, JC+ say they can do no more.

It’s been 2 months already. This will guarantee another few weeks’ delay.

Who the hell is in charge of this process, DWP or Atos?????

JR letter before action.

So angry I think I will do just that - awaiting further call from DM before I do so.

I’m also told that the local (county level) office can do little more & a ‘disputes resolution office’ will have to deal with any further argument. I wonder if there is a ‘Making proper decisions in a reasonable time’ office too? How many other offices can they push this off to????

I sympathise with DWP staff, I suspect they have a rubbish time in an unreasonably pressured environment. But this, as the newspaper hacks would say, is ‘bureaucracy gone mad’.

Hmmm - a very helpful DM has overturned the decision, but on the basis that the claimant had good cause for not attending the Atos appointment.

I think I’ll still take up the issue of the stretchable 6 months as a general matter as this won’t be the only case.

Thanks Nevip.

Andrew Dutton - 02 January 2014 10:51 AM

Gets a job; phones JC+ to tell them and asks them to close his claim.

Job start date is the same as his Atos examination date. Doesn’t attend, for obvious reasons.

 

Andrew, Did his ESA claim close before the date set for his ATOS examination?

I had two similar, but distinguishable situations.

Firstly a new claim after 6 months has elapsed seems to work. Secondly, if the failure to attend is related to their disability; i.e. in my case the chap was schizophrenic and thus very bad at getting to appointments, then issues under the Equality Act may be engaged and a letter of claim from a solicitor worked wonders in securing action by JCP.

I’ve seen them get a claim into payment; including offsetting arrears of JSA, within 48 hours of receiving such a letter.

This one was put back into payment very quickly too,for different reasons that didn’t clarify the 6-months argument at all.

To answer Mick’s query, client stated he called JC+ on the day before he started work (4th April) and Atos exam was 5th April - but JC+ at a later date closed his claim retrospectively from 16th April and this pre-dated the making of the ‘no good cause; decision. So JC+ appear to have restarted the award from the date of claim in October as the April claim was closed and the ‘no good cause’ decision was not effective.

Hi Andrew

Did you ever take up the issue of the stretchable 6 months as a general matter?
If so did you get anywhere with it?

Ta