WRAG ESA(cb) expired and Support Group - What next??

A client of mine was in receipt IB for many years and then on of ESA(cb) and placed in WRAC.

Her 365 days has just expired and she does not qualify for ESA (IR) - due to partners income.

1. If she makes a new claim for ESA citing deterioration will she be able to rely upon her NI Credits paid previously?? The DMG isn’t precisely clearly but suggests that provided she qualifies for LCWRAC (support group) then she will receive payment whilst in support group. Is that right?

2. Alternatively, will she be able to use the supercession route claiming retrospective deterioration from December 2013, despite the claim ending?

There probably is a thread on this, if so any direction would be appreciated.

Her claim has not ended.While C ESA payments may have stopped she should still be receiving NI credits as she should continue to have limited capability for work status which can only be ended by failing,or refusing to take part in,the work capability assessment.

As long as she retains LCW status she can reclaim C ESA at any time if her health deteriorates to the point where the support group criteria can be met.

Thanks - that does make sense.

Just curious why DWP advised her to make a fresh claim and not simply do a supercession especially as her condition has deteriorated. 

I’ve heard of cESA claims actually ending when 365 days elapse. JCP even advises people to submit med certs once their ESA expires. This is not required in law but may explain the advice given re: reclaiming.

That’s my concern, that a new claim goes in and then the DWP refuse to pay her contribution based ESA if she satisfies Schedule 3 at a later date.

If they refuse, challenge the decision. The claim should not end. If DWP closes the claim because payment stopped, they have to justify that and they probably can’t. The claimant should be on a “credits only” claim now, meaning she gets NI credits but no payment. My previous comment was just for information, there should be no problem if DWP does its job right.

Edmund Shepherd - 28 February 2014 05:29 PM

there should be no problem if DWP does its job right.

The sound of hollow laughter pervaded throughout…

@Micheke_J: As I see it, her cESA stopped due to time-limiting. It’s unclear from your post whether an adverse LCW decision was made. If no adverse LCW decision has been made, cancer is a change just like any other deterioration and ESA can recommence if conditions of entitlement for the SG are met.

Your post implies that you believe ESA is only paid in respect of the condition at the point of claim and that a new condition is the subject of a new claim. If someone HAS claim for ESA and reports a new condition, this should prompt a reassessment but is still the same claim and the same NI conditions apply as did at the point of claim.

If your client has had a negative LCW decision, s/he can appeal it. If not and the claim has been closed just because the 365 days rule came in, complain. It looks like your client reported a change and it was ignored by JCP, so certainly complain about this.

I don’t understand this business of the “claim” not ending.  There was, strictly speaking, never a claim in the first place: the ESA (Existing Award) Regs that deal with conversion modified Reg 3 of the Claims and Payment Regs to make “a claim” for ESA unnecessary for a holder of an existing award such as IB that was subject to conversion.  Instead the conversion decision is treated as if it had been made on a claim.  However, a claim (whether actual or, as here, deemed) never subsists beyond the decision on it, here the original conversion decision. 

The “award” of CESA incl WRAG does end on the expiry of 365 days and a new claim is needed.  In MNM’s case, client missed their chance to supersede based on a change of circs occurring prior to day 365 because they didn’t request a supersession.  They could in theory ask for the time limit for making that supersession request to be extended under Reg 8 D&A.  Howerver, far easier for that client to either make a new claim and rely on the very generous linking rule provided by section 1B WRA 2007 to re-start the CESA from the date of that new claim should the client get into the support group, or late appeal the decision time limiting ESA.

In Michele’s case, the client appears to have provided info about a change of circs to the DWP which could be treated as an application for supersession under Reg 6(5) D&A Regs.  I’m assuming the client did not fit special rules (her DLA remained lower rate of each component), in which case the notification that her condition had worsened did not require anything more than that (if she’d been terminally ill the notification would have to include an express statement about the terminal illness - see Reg 6(6)(c) D&A).  If a decision on that supersession application has not been made then it’s arguable that the time limit for appealing it has not started to run.  I used to rely on Reg 32(1) D&A to ask a tribunal to find that an appeal had been made in time in such circs but that reg was revoked from 28/10/13.  I’m sure there’ll be an equivalent in the Tribunal Procedure Rules.

Again, late appealing the time-limiting decision or making a new claim based on the linking rule of section 1B are alternative options. 

Re the supersession, as a new WCA was not performed due to DM refusing to treat her notification of deterioration as a supersession application then it’s difficult to say whether she would have met the criteria for being treated as being in the support group found in Reg 35(1)(b) ESA Regs.  In the absence of terminal illness or chemo etc having already started, she can be so treated if chemo etc is likely to start within 6 months of the date of the determination of capability for work-related activity.  There was no such determination made in this case due to DM’s failure to treat her notification as a supersession but it’s arguable that her WRAG status was an ongoing determination of capability for work-related activity for these purposes (ie, she did not have limited capability for work-related activity).

I have to disagree with Tom H here.  On the expiry of 365 days of CB ESA payment on that claim will end ( assuming no IR entitlement) but the claim itself remains “live”.  As pointed out earlier it remains a “credits only” claim and in the absence of a specific determination that client does not have limited capability for work, can continue indefinitely. 

We have had successful supercession requests in this area in this specific scenario where the request for supercession has been after the expiry of the 365 days, with the client being placed in the support group on the basis of the deterioration in client’s condition again after the 365 day period.

In essence “credits only” keeps the claim alive and payment on the claim is not necessary for that claiim to remain in existence

There’s no legal basis for what you’re suggesting Grant.  Good luck to you if local DMs/tribunals are prepared to consider supersessions after awards have ended.  The law is clear.  Section 1B WRA 2007 which was introduced at the same time as section 1A (which governs time limiting) expressly refers to the entitlement to ESA ceasing in the circs we are discussing. 

The DWP are all over the place when it comes to credits decisions and have been regularly criticised by Commissioners for not complying with the law when it comes to awarding credits.

When a person’s ESA entitlement ends following time limiting, the law itself does not state that they continue to have LCW.  Reg 10 D&A merely provides that a determination that someone has LCW is conclusive for further decisions.  But Reg 10 cannot bind future DMs considering decisions involving LCW for later periods. (ESA, like IB before it, is awarded indefinitely until entitlement is re-assessed but I don’t think the same can be said for the concept of Lcw itself). 

So if I am awarded CESA on 1/1/13 and my award is time limited on 31/12/13, all Reg 10 does is ensure that DMs considering other benefit decisions involving LCW, eg whether to award credits, are bound to accept that I had LCW upto 31/12/13 but not necessarily from 1/1/14 onwards.  In reality, DMs do award credits after ESA is time limited simply because it is more probable than not that I continue to have LcW (I have not, after all, failed any medicals). But that assumption does not have to be indefinite.  Let’s say in the above example I continue to apply for credits based on having LCW for several future tax years after my CESA was time limited.  The DM would not be bound to accept that I still had LCW in, say, 2016/17 just because my CESA was time limited on 31/12/13 without my having failed a medical and without me ever sitting another one since.  The onus would be on me to show that I still have LCW if requested.  The fact that the DWP continue for reasons of administrative convenience to award credits for years after doesn’t mean they are legally required to.

Caselaw holds that an award once ended, eg CESA upon time limiting, cannot be superseded for change of circs.  It could in theory be superseded, however, for a mistake/ignorance of material fact despite having ended.  But you’d need to show that the material fact existed at the date of the time limiting decision.  In MNM’s case, an assertion that the client had worsened without more would arguably not be a material primary fact.  However, new clinical findings which when compared to earlier ones suggested worsening would arguably be a material primary fact.  Section 1B WRA does not require a new claim to be made in order to be triggered so a supersession (based on mistake/ignorance of fact) of a time-limiting decision could trigger its generous linking rule.  However, in most cases clients contend that their worsening occurred at some point after their ESA was time limited (ie a change of circs).  For them, it has to be a new ESA claim to trigger section 1B as there can be no supersession for change of circs where there is no continuing award of ESA.

What about WRA 2012?

52 Further entitlement after time-limiting

(1)After section 1A of the Welfare Reform Act 2007 (as inserted by section 51 above) there is inserted—
“1BFurther entitlement after time-limiting

(1)Where a person’s entitlement to a contributory allowance has ceased as a result of section 1A (1) or (4) but—
(a)the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,
(b)the person satisfies the basic conditions, and
(c)the person has (or is treated as having) limited capability for work-related activity,the claimant is entitled to an employment and support allowance by virtue of this section.
(2)An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part.”
(2)In section 1 of that Act (employment and support allowance), in the definition of “contributory allowance” in subsection (7), after “subsection (2)(a)” there is inserted “(and see section 1B(2))”.

Explanatory Note:
Section 52: Further entitlement after time-limiting

277.Section 52 inserts a new section 1B after section 1A of the WRA 2007 (as inserted by section 51). This provides for further entitlement to an award of contributory ESA after time limiting under section 51.

278.New subsection (1) of new section 1B provides that where entitlement to contributory ESA (including on the grounds of youth) has ceased as a result of time limiting, a person may become entitled to a further award if since that cessation:

the person has not ceased to have (or be treated as having) limited capability for work;

the person satisfies the basic conditions; and

the person has (or is treated as having) limited capability for work-related activity.

279.This means that where a person’s contributory ESA ceases as a result of time limiting, and their health condition deteriorates to such a degree that they are later placed in the support group, they will be able to re-qualify for an award of contributory ESA if the above conditions are satisfied.

280.The entitlement to the award only exists for as long as the person has (or is treated as having) limited capability for work-related activity (and so falls intp the Support Group). If the person goes through a subsequent work capability assessment and is placed into the work related activity group, then entitlement to an award arising by virtue of section 1B would cease.

281.New subsection (2) of new section 1B provides that this further entitlement is to be regarded as a contributory allowance.

282.Subsection (2) of section 52 inserts a reference to section 1B(2) into section 1 of WRA 2007 so as to clarify that the definition of “contributory allowance” in section 1(7) is to be read with section 1B(2) of WRA 2007.

Andrew that’s the provision I’m referring to: section 1B WRA 2007 which was inserted by section 52 of the WRA 2012.  Same thing.

Worried now: DMG seems to support the idea:

Application made after award has terminated
41862 Where
1.  entitlement to ESA(Cont), including under the youth provisions, has been
terminated as in DMG 41810 or 41815 because it exceeded 365 days and
2.  the claimant
2.1   reports a deterioration in their health condition or
2.2   makes a further claim for ESA(Cont) and
3.  the claimant had, or is treated as having had, LCW since the previous
entitlement ended and
4.  the claimant satisfies the basic conditions of entitlement (see DMG 41012)
and
5.  the DM determines that the claimant has, or is treated as having, LCWRA
the claimant is entitled to an award of ESA(Cont), even though they do not satisfy
the contribution conditions1
. The award is regarded as an award of ESA(Cont) for all
other purposes, for example amounts payable2
.
1 WR Act 07, s 1B(1); 2 s 1B(2)

Is it the having/being treated as having LCW that is the problem here? (Slow day brainwise)

Why worried?  Section 1B is a very generous provision.  It does not require that your condition has worsened.  You can re-apply for ESA at a time of your own choosing, say, where you have obtained very good medical evidence, and provided you get into support group you can start to be paid CESA again for as long as you stay in the support group.  And irrespective of the gap in time between your ESA re-claim and the date the old award was time limited.  The DWP in practice just accept that you have remained LCW in the intervening period.  All I was suggesting is that there is no legal obligation on them to do so as such.  Depends how you interpret the word “further” in Reg 10 D&A.

This is interesting. I read ss52 of WRA 2012 to be that no new “claim” is required where the claimant has not ceased to have LCW, satisfies the general conditions and also has LCWRA. This entitlement is then entitlement to cESA. Reg. 15 of the ESA regs 2013 define LCW by having scored sufficient points. It goes on to specify when the SoS can redetermine LCW - when there’s been a change of circumstances, if there’s been a mistake or when three months have passed since the claimant was determined to have/treated as having LCW.

Are we saying that the “award” ends when payment ends and that LCW ends at the same time?

I understood that the SoS will only terminate an award if either the general conditions are no longer met or if an adverse LCW decision is made. Do the rules on time-limiting give the SoS the power to terminate the award? I may have missed it in the above, but what is the legal basis of this?

If a decision to time limit ESA is also a LCW decision, then this is appealable. However, they aren’t notified as such, so is DWP making an error in not notifying the claimant that they are no longer deemed to have LCW?

I hope that makes sense.