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

Michele J, a supersession based on ignorance of material fact is possible but the problem with this type of supersession is that even if you’re successful the supersession takes effect, under section 10(5) Social Security Act 98, only from the date of the application, ie now, rather than from the date the mistake or ignorance occurred.  As such that type of supersession offers nothing in the present circs that a new claim would not provide (in fact the supersession is more difficult because the onus is on you to prove ignorance or mistake as well as establishing that the fact was material).

Your supersession is better argued in my view on the basis of change of circs (ie the worsening of condition prior to time-limiting).  As stated previously, if the DM never acted on your notification then the time limit for appealing has arguably not started to run.  Problem with this option is that:

(i) You need to prove that she did notify DWP at the time.  Has she any evidence of that?

(ii)  Getting a tribunal to accept jurisdiction or, at least, make a direction about the status of any appeal (as stated previously I used to use Reg 32 D&A before it was revoked), and

(iii) Was the change of condition, unrelated to cancer as it was, likely to get her into the support group?

The only other option is a new claim based upon her satisfying the support group at present which, as you suggest, has a good chance given that Reg 35(1)(b)(iii) allows a person to be treated as having limited capability for work-related activity where they are recovering from chemo or radiotherapy and the DM is satisfied that they should be so treated.  Section 1B WRA 2007 would allow any new award of ESA incl support group to be contributory ESA.

The problem with superseding from either the date the cancer was diagnosed or date treatment started is that there was no award of ESA to supersede at that point (it had ended in May).  Good luck of course but it appears, legally, a non-starter.  The authority for an existing award to be in place in order for it to be superseded is R(I)56/54.  To quote from the commentary in Volume 3 Social Security Legislation to section 10 SSA:

“In R(I)56/54, the Commissioner said: “ A relevant change of circumstances postulates that the decision has ceased to be correct”.  This means that only an award may be superseded on the ground of change of circumstances”.

Edmund Shepherd - 13 March 2014 09:27 AM

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?

The legal basis is section 1(2) WRA 2007 which provides:

“Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either–

(a) the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance)… or

(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position).”

Section 1A, which, as we know, provides for time-limiting of awards, is one such provision “of this Part” for the purpose of section 1(2) above.  Consequently, once time limiting applies the person no longer satisfies section 1(2)(a).  If they fail the means test, they do not satisfy 1(2)(b) either.  In which case they no longer have a legal basis for entitlement to ESA.  The fact they continue to have limited capability for work is irrelevant as LCW is just one of the basic conditions.  Section 1(2) requires that you satisfy all of the basic conditions and either the contribution conditions or the means test.

As there is no legal basis, the entitlement/award ends.  And the only way to re-start that in the vast majority of cases is a new claim (an exception would be an application for supersession based on mistake/ignorance which, as stated above, would only be effective from the date of application, ie a date from which you could just as well have made a new claim.  Such a supersession, if successful, could also rely on section 1B in my view, which perhaps explains why section 1B does not expressly require a new claim).  But it is implicit that a new claim will be required in most cases.

The DMG states that where a person has a worsening of condition that occurs after time-limiting and they satisfy the SG criteria as a result, the DM should invite them to make a new claim.  What constitutes a new claim is a moot point.  A form approved by the SSWP is not defined in the Claims and Payment Regs.  I have a case at present where the person’s ESA was time-limited last summer but the DWP sent him an ESA50 a few months ago and on the strength of that form alone (no medical) they have re-started his CESA based on section 1B (ie, he wasn’t required to complete a new ESA1).

Edmund Shepherd - 13 March 2014 09:27 AM

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

In my view, it’s not so much a case of LCW ending at the same time but more a case of evidencing LCW from that point.  Reg 19 ESA Regs which, as we know, provides the test for LCW is made expressly for the purpose of Part 1 WRA – see wording of Reg 19(1).  And Part 1 WRA is purely concerned with entitlement to ESA not credits.  For the latter we have to look to the Credits Regs 1975. 

Reg 8B of those Regs provides as follows:

“(1) For the purposes of entitlement to any benefit by virtue of a person’s earnings or contributions, he shall be entitled to be credited with earnings.., in respect of each week to which this regulation applies.

(2) Subject to paragraphs… and (4) this regulation applies to–

(a) a week in which, in relation to the person concerned, each of the days–
…
(iva) would have been a day of limited capability for work for the purposes of Part 1 of the Welfare Reform Act (limited capability for work) where the person concerned would have been entitled to an employment and support allowance but for the application of section 1A of that Act;…

(4) A day shall not be a day to which paragraph (2)(a) applies unless the person concerned has–

(a) before the end of the benefit year immediately following the year in which that day fell; or

(b) within such further time as may be reasonable in the circumstances of the case,

furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings”

The law is, therefore, clear that the onus is on the claimant to furnish the DWP with evidence of his/her LCW.  And it’s clear from caselaw on para (4) above that the earliest point at which such evidence can be furnished is the end of the tax year in respect of which you’d like to receive the credits.  Eg, if my ESA is time-limited on 30/8/12, the earliest I can apply/be awarded credits for 2012/13 is 6/4/13.  The problem at present is that the DWP are not complying with this law and are, despite criticism from Commissioners, simply awarding people credits for LCW automatically (or so we are led to believe anyway).  That is why advisers say the award automatically converts to a “credits-only” award.  There’s no legal basis for that in my view. 

I suspect this actually might even be a future scandal in the making where claimants might find that not all of the years since their ESA was time-limited have been credited.  I wouldn’t trust DWP systems to go on remembering that people need credits for LCW.  I would advise clients to request regular pension forecasts or seek confirmation in writing that individual tax years have in fact been credited with earnings.  Legally, the onus is on the client to apply for credits but I suspect the DWP’s practice has created a legitimate expectation for credits to be awarded, which could be legally relied upon should DWP systems fail.

Continued…

Continued from last post..

However, credits are a red-herring for present purposes because we are actually considering the first limb of section 1B WRA where the person needs to show that he/she “has not at any subsequent time [ie, since time-limiting] ceased to have (or to be treated as having) limited capability for work”.  As section 1B falls within part 1 WRA then, I agree Edmund, that the test for whether someone has kept their LCW after time-limiting must be decided by Reg 19 (even though they do not have an ESA award during the period concerned). 

For section 1B, all the claimant has to do is point to the fact that he has not been re-assessed for LCW since time-limiting nor fallen foul of any of the other ESA Regs that treat him as not having LCW, eg starting remunerative work, and he should satisfy the first limb of its test above.  Like any new claimant, the burden is still on him/her to prove on balance that they have remained LCW in the period concerned.  And the fact you’ve not been re-assessed etc is very strong evidence.  But there’s still no general rule that you automatically have LCW provided you have not been re-assessed under the WCA.  Imagine if it came out that you’d run a marathon in between the time-limiting of your old award and a later deterioration in your mobility that prompted you to re-apply for CESA.  In that sense Reg 10 D&A’s inapplicability to future periods still holds good.

Tom, thank you for your detailed response, in particular the distinction between entitlement to ESA and entitlement to NI credits for LCW. Just briefly on the subject of NI credits for LCW:

Tom H - 13 March 2014 03:14 PM

(4) A day shall not be a day to which paragraph (2)(a) applies unless the person concerned has–

(a) before the end of the benefit year immediately following the year in which that day fell; or

(b) within such further time as may be reasonable in the circumstances of the case,

furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings”

You say that caselaw on the above makes the earliest point the claimant can furnish this evidence is the end of the tax year in respect of which credits are desired.

I read this as setting a late-stop end date by which you need to claim NI credits for LCW, rather than setting an earliest date. I am surprised if case law seems to contradict the regulations. The end of the benefit year following the year in which the day with LCW would surely be the end of the next year. So, if the day with LCW fell on 30/08/12, the next (following) [benefit] year would end at the start of January 2014. The regulation above doesn’t seem to set an earliest date the credit can be added (unless all credits are standardly added at the end of the year, but this shouldn’t prevent someone from requesting them as soon as the cESA award ends).

With this in mind, is it advisable to formally request a claim for NI credits in writing when a claim for cESA is time-limited, then leave it up to the SoS to decide whether a WCA is required?

Sorry Edmund I should have been clearer.  Commissioners have held that a reg like 8B(4) of the Credits Regs must, in order to make any sense, be read alongside Reg 3 of the same regs.

Reg 3 uses the device of a “reckonable year” to decide whether, ultimately, you can be awarded credits.  A reckonable year is defined in Reg 2 Credit Regs.  To be reckonable, the year must help you satisfy the contribution condition listed in Reg 2 for the particular benefit that you wish to qualify for.  So, if you wish to qualify for contributory ESA, a year can only be reckonable for the purpose of the 2nd contribution condition for ESA (as we know, you always need to have worked and earned at some point in order to satisfy the first contribution condition for ESA).

Under Sch 1 to the WRA 2007, a tax year may satisfy the 2nd contribution condition for ESA if your earnings factor in that year is at least equal to 50 x the LEL.  If so, then it’s a reckonable year.  There are similar rules concerning whether you satisfy the 2nd contribution condition for, eg, a category A state retirement pension.  In respect of qualifying for CESA, if your earnings fall short of 50 x LEL then Reg 3 above steps in to award you credits but only enough credits to make the year a reckonable one. 

Eg.  The LEL for 2012/13 was £107 p/w.  In order for 2012/13 to satisfy the 2nd contribution condition my earnings factor would need to be £5350 (ie 50 x £107).  If I was awarded CESA on 31/8/11 and it’s time-limited on 31/8/12, I may potentially be awarded credits for the period 6/4/12 – 31/8/12 (ie, 21 weeks), the legal basis for which being para (iv) of Reg 8B(2)(a) Credit Regs, ie actual days of limited capability for work.  In addition I may, again potentially, be awarded credits for the period 1/9/12 – 5/4/13 (31 weeks), the legal basis for which is sub para (iva) of Reg 8B(2)(a), ie days that would have been LCW days had my ESA not been time limited. 

However, I could get a job in, say, Nov 2012 earning £700 p/w.  In 8 weeks my earnings would be £5600, ie above the earnings factor of £5350 above.  Even if I then stopped work, I could not receive any credits for 2012/13 (not even for any of the 21 weeks when I was actually in receipt of ESA).  That’s because Reg 3 will only award me credits in order to top my earnings threshold up to make it a reckonable year. 
Consequently, because we cannot predict the future, we cannot predict whether we will require credits until the end of the tax year.

So to qualify for credits you must under the law:

(i) have a legal basis for claiming, eg 8B(2)(a)(iv), (iva)

(ii) you must need the credits to make the year a reckonable one under Reg 3

(iii)  you furnish the evidence in support of (i) above no earlier than the end of tax year
      that you wish to claim credits for, and no later than the relevant deadline date.

The caselaw reveals other reasons for the above rule.  For example, the legal basis for receiving credits based upon unemployment (where you weren’t being paid Jsa) require that you are actively seeking and available for employment – see Reg 8A(2)(b) Credits Regs.  Again you need 50 such weeks for the year to be reckonable.  As one commissioner noted, how could you possibly know any earlier than the end of the tax year whether you’d spend 50 weeks actively seeking work without it casting doubt on the genuineness of those jobseeking efforts. 

Michele_J - 14 March 2014 12:42 PM

..I doubt she would meet the conditions now for C-ESA.

I thought she had a reasonable case based on the facts in your earlier post, ie she was recovering from chemo & radiotherapy.  Consequently, if she re-applies for ESA she has a very good chance of being treated not only as LCW under Reg 20 ESA Regs, but also as having LCWRA (ie support group) under Reg 35.  And section 1B WRA ensures that any new award that includes the SG would be payable because it would be deemed to be contributory ESA.

Michele_J - 14 March 2014 01:53 PM

I think we will try to argue change of circumstances due to deterioration of conditions prior to end of time-limiting (ignored by JCP) and that she would have had limited capability for work-related activity during the period that she waited for this operation (points) and then 3 months later she was diagnosed with cancer anyway (so she is SG).

That’s a very good idea, actually.  In fact, if you can convince a tribunal judge at a preliminary hearing that the DM has not yet made a decision on your supersession application, any decision that the judge then orders the DM to make would be appealable and an ordinary tribunal would be able to look at everything that has happened right down to the date of that delayed decision.  So as you suggest, a tribunal could make one supersession to put her into the SG based on her worsening health and thereby ensure that her award was never time-limited and then make a further supersession (ie, of its own supersession decision) to award the SG on the basis of the cancer treatment.

The alternative of course is to late appeal the time-limiting decision.  Grounds for lateness are the worsening health followed by cancer which meant she had more on her mind that appealing a benefits decision.  And also that she thought she had requested a supersession which obviated the need for an appeal.  Any tribunal hearing the late appeal would be restricted to looking at the facts existing at the date of the time-limiting decision.  One such fact you’d no doubt argue is that a month or so beforehand her condition had worsened sufficient to put her into the SG, and that there’d been no improvement by the date of the time-limiting decision.

Edit: Just to be clear, there is specific provision in the ESA Regs allowing the claimant to be treated as having LCW status and support group status, ie without having to be assessed under the LCW and SG descriptors, where the claimant is recovering from chemo or radiotherapy treatment and DM is satisfied that they should be treated as LCW and SG - see Regs 20 & 35 ESA Regs.

Hi all, thanks for the contributions.

I think from the comments the following is true;

1. Following 365 days - ESA cb will end
2. A new claim can be made for ESA cb - this will be based on LCW only and NI credits will be awarded
3. ESA is linked to previous claim as LCW remains
4. NI contribution years - even those predating IB will still be applicable
5. Client can seek supercession into SG after 365 days and provided successful ESA cb will be paid again - so a claimant with a working partner will have payments resumed;
6. If client seeks to supercede retrospectively after expiration - this can be done in limited circs

Personally my biggest fear was that when ESA ended after 365 days - then the ESA claimant (who had been converted from IB) would not re-qualify for ESA cb as the DWP would look at more recent tax years to establish entitlement and would no longer count the tax years pre-dating the IB claim thus resulting in the claimant never being able to receive payment for ESA cb even if she later qualified for SG.

Coincidently, I have just taken on a client whose 365 days expires next week. I will be submitting supercession before deadline just in case 😊

MNM - 14 March 2014 03:36 PM

I think from the comments the following is true;

1. Following 365 days - ESA cb will end
2. A new claim can be made for ESA cb - this will be based on LCW only and NI credits will be awarded
3. ESA is linked to previous claim as LCW remains
4. NI contribution years - even those predating IB will still be applicable
5. Client can seek supercession into SG after 365 days and provided successful ESA cb will be paid again - so a claimant with a working partner will have payments resumed;
6. If client seeks to supercede retrospectively after expiration - this can be done in limited circs

1. Agreed

2. A new claim can be made but it will not be paid unless you either (i) satisfy the contribution conditions or (ii) you are put in the SG and you satisfy the other conditions of section 1B WRA, eg have retained your LCW status throughout.

The DWP practice after ESA is time limited appears to be to award you credits at the end of the tax year anyway unless you fail a WCA in that tax year.  So a new ESA claim is unnecessary and probably a waste of time unless you can get into the SG (see point 3 below).  But it’s worth requesting pension statement or equivalent confirmation yearly to check that you have in fact been awarded the credits.

3. Only periods of limited capability for work (pLCW) link.  A pLCW is defined in Reg 2 ESA Regs as a period throughout which a person has or is treated as having LCW but does not include a period outside the 3 months’ time limit for claiming ESA prescribed by the Claims and Payment Regs.  This has been discussed on Rightsnet previously and the consensus was that a pLCW only exists where ESA has been claimed.  That is implied by the above definition of pLCW.  You are not, therefore, in a pLCW if, for example, you have been awarded LCW credits only (despite LCW being a condition of such a credits award) because a claim for credits is not a claim for ESA (and the above definition of pLCW impliedly requires a claim for ESA to have been made). 

A new ESA claim, whenever made, following time limiting of an old award, will, therefore start a new pLCW.  In order to link the new pLCW needs to commence within 12 weeks of the old pLCW ending – Reg 145 ESA Regs.  There is no legal provision allowing you to carry over your LCW status from the old pLCW (despite the fact that that pLCW ended because of time-limiting rather than you ever failing a medical).  The WCA determination re the old award (which put you in the WRAG) is not conclusive for the WCA decision which a DM is bound to make re the new claim, and in my view Reg 10 DMA does not suggest otherwise.  Instead section 17(2) SSA98 applies and the new DM is not prevented/estopped from disagreeing with the old determination on exactly the same facts.  But the DM is, if anything, more likely to agree with the old determination, ie decide that you’re still in the WRAG and hence still not entitled to CESA.

Whilst waiting for a new WCA on the new claim, I think the claimant is treated as having LCW under Reg 30 (the 6 months’ rule not applying as the old ESA ended because of time limiting not failure of the WCA).  Unless the result of the WCA on the new claim is that claimant is in support group (or he satisfies the contribution conditions afresh which is very unlikely), the new pLCW will end because entitlement to ESA will end (claimant will no longer satisfy section 1(2) WRA).

4.  Years that helped you satisfy IB will very rarely help you satisfy the first contribution condition for ESA and, therefore, very rarely help you qualify again for CESA full stop.  Any new claim following time limiting would have to be made more than 12 weeks after the time-limiting decision.  Otherwise Reg 16 of the ESA (Existing Award) Regs would result in the new claim being dealt with under the Existing Award Regs rather than the ESA Regs.  The former omit Reg 8 ESA Regs which is the provision allowing you to rely on a much earlier year from your contribution record in order to satisfy the first ESA contribution condition.  Even if you wait more than 12 weeks to make a new ESA claim, you’ll only be able to rely on earnings from a previous year if you come within the narrow criteria of Reg 8, eg, you were awarded CA in the last complete tax year prior to your new pLCW.  Those whose ESA is time-limited following conversion from IB to ESA will otherwise either have to return to work and earn the LEL in each of 26 weeks, or rely on section 1B WRA discussed in this thread.

5. I’ve edited my response to this one.  It does not appear possible to apply after the time limiting decision for a supersession for change of circs because there is no longer an award to supersede.  And that appears the case even where the change of circs occurred before the time limiting decision was made.  Although there’s provision in Reg 7 & 8 D&A to backdate the effective date of such a supersession to the date that the change occurred, there would still need to be an existing award in order for Reg 6(2)(a) D&A to bite when the application is made.  Michele J’s client is different because they applied for supersession before time-limiting but it wasn’t actioned.  If the change itself occurs after time limiting then supersession’s a non-starter.

A supersession application for mistake/ignorance may be made after time-limiting decision (but the material fact of which DM was ignorant etc must have existed before the date of time-limiting).  In any event, that type of supersession offers no advantage over a new claim as its effective date is not the date the ignorance occurred but rather the date the application for supersession is made, a date from which you could just as easily make a new claim.

6.  Agreed, eg for mistake/ignorance – see above.  And even if successful with that type of supersession, you’d still have to rely on section 1B WRA, ie still need to get into support group.

Just to update you ...

I lodged a supercession for support component after client’s 365 days expired and whilst she was receiving NI credits.

Today DWP have totally ignored my grounds for supercession which are substantial with ample amounts of evidence and responded with

“Your Solicitor sent a letter asking that you are re-assessed for the purpose of WCA”

I sent a letter clearly addressed Supercession/Mandatory Reconsideration and never asked for a re-assessment. 

Now DWP are arranging a new Medical Assessment.

I am thinking of lodging a complaint on grounds that the DWP have a duty to acknowledge and respond to Supercession/Mandatory Recon and not circumvent by arranging a new medical.

Is it worth doing or shall I simply let the DWP arrange a medical - which could easily result in my client getting all her ESA removed??

Any thoughts welcome

MNM - 19 March 2014 04:21 PM

Is it worth doing or shall I simply let the DWP arrange a medical - which could easily result in my client getting all her ESA removed??

You’ll not be surprised that my thoughts are that there’s no legal basis for your supersession based on change of circs.  Simply because it was made after the old award had run out (see point 5 of my last post).  But we’re operating in a world where law is not always followed by decision makers.  That is why they’re considering superseding a LCW credits award into an ESA award when the two are distinct benefits. But within that world I don’t think it’s unreasonable sending your client for a medical to decide whether they should go into the support group despite the copious evidence you’ve already supplied.  I understand that DMs are, in fact, not allowed to authorise a promotion from WRAG to SG without first getting an opinion from Atos (guidance which surely fetters the DM’s discretion).  Still, I think being sent for a medical cannot be avoided in most cases.

The WCA comprises the LCW test and the Limited Capability for Work-related Activity (LCWRA) test (ie the Support Group), so the DWP stating that you have asked for a re-assessment under the WCA is, in a sense, factually correct.  The DM has discretion under Reg 19(7)&(8) to re-assess LCW at the same time as assessing LCWRA.  Losing what the DWP deem you to have (ie LCW status) is a risk inherent in applying to join the SG, whether via a new claim or a supersession.  Aside from judicial review of the automatic referral to Atos in this type of case based on fettered discretion, your client’s only other options are to withdraw their “supersession” request or have their case reviewed by Atos.  Any decision they’re unhappy with is of course appealable.

Of course, just because the case is sent to Atos doesn’t mean the LCW status will be reviewed or that the client will be sent for a medical.  Atos could simply restrict itself to the question of the SG and decide that based on your good evidence the client should be promoted to SG.  In that event, my view is that the DM (who will always rubber stamp any Atos decision) should invite your client to make a new claim.  For example, the client could have started to receive an occupational pension in the period between the end of the time-limited old award and the start of the new one, a fact the client could not reasonably be expected to realise might affect his/her re-started contributory ESA.  The questions on a claim form would, of course, elicit that fact. But in reality, your client’s ESA would probably re-commence without more (it has for my client who was sent an ESA50 only).

Thanks Tom,

1. In this case, I thought that since a new claim for ESA was made in January upon expiration of the 365 days that would constituted a new ESA contribution claim as she was awarded NI Credits for LCW. No medical was conducted when this new claim was allowed however.

2. And given that it appears to be a new claim the claimant could apply at any time for supercession to increase LCW to LCWRA simply by submitting further medical evidence and seeking a Mandatory Reconsideration Supercession - which the DWP had a duty to consider - I understand they have right to seek a medical assessment.  But don’t they also have a duty to respond accordingly to a mandatory recon

3. It seems like my client is in limbo in a hybrid ESA award - receiving ESA NI credits for LCW but not in receipt of ESA.

Sorry, I was basing my answer on your very first post in this thread which suggested she had not made a new claim since time-limiting of the old award. 

Your info suggests that the DWP have made a decision on her January new claim and that that decision refuses to put her into the SG.  That decision would bring her new claim to an end (under section 8 Social Security Act 98 a claim subsists only upto a decision being made on it). 

She would be left without an award of ESA from the date of the new decision (the credits issue is a bit of a red herring in my view for reasons I gave in earlier posts).  That’s because her new claim was made within 12 weeks of the old time-limited award.  As such, although the new claim’s pLCW links with the old pLCW that’s not a good thing here because her 365 days expired under the old pLCW and so her new linked pLCW starts from day 366.  So when they decide that she isn’t in the SG re the new claim, it means she’s in no different a position to an ordinary time-limited person on day 366, ie she’s not entitled to ESA at all by virtue of section 1(2) WRA 2007. 

Even if she’d waited more than 12 weeks before making her new claim it would have made little difference to the outcome as she still wouldn’t have satisfied section 1(2) on the info provided, ie she hasn’t any recent contribution years to satisfy the ESA contribution conditions.

However, I agree that the decision on the Jan new claim is subject to Mandatory re-con.  But it’s not clear whether you’ve requested MR of that new claim decision or whether you’ve subsequently applied for a supersession and requested a recon of the refusal to supersede.  That’s important because in my view there would have been no award to supersede once the Jan claim was refused.  So the recon request of any refusal to supersede would be pointless.  Even if you could persuade a DM to carry out a recon of any refusal to supersede, a tribunal hearing a subsequent appeal against that decision would have no jurisdiction (because there would never have been a valid supersession in the first place). 

Far better then to challenge the DWP’s refusal to mandatorily re-consider its refusal to award ESA based on her Jan new claim.  That claim should have led to a new WCA and should the client have been put into SG, her contributory ESA would have re-commenced under section 1B WRA from Jan 2014.  But was your MR request made within one month of the new claim decision?  If not, you could, as we know, ask for the MR to be considered out of time or simply put a further new claim in now.  If the latter, the DM would have to consider entitlement as with any new claim but is highly likely to refuse to award ESA again, in which case you could then request an “in-time” MR of that decision and subsequently appeal.  It just means, any arrears of ESA if you are eventually successful under this last option would start from now rather than Jan.

TBH I have not seen the award letters in January. My client simply told me that she was advised to make a new claim which she did and she recieved a decision letter awarding ESA credits.

I subsequently sought a Supercession into SG based on worsening condition after the new claim was made.

I did ask for the supercession to be retrospective if possible back to November 2013 - but I was chancing my luck with that.

I think its worthwhile ascertaining what exact Decisions have been made in Jan because it could be the case I am superceding an award that doesnt exist. 

My fear is that this client will satisfy SG and then be told she won’t get paid. 

Just to clarify I have sought mandatory reconsideration on new claim and not a supercession decision. 

To-date we have had no supercession decision just a letter seeking client goes for medical.

1964 - 03 March 2014 01:53 PM

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…

I’m sat at my desk; getting over the commute and trying to get some feeling back into my toes.  That you very much for this; it’s been ages since I laughed aloud at this time in the morning.  So dry, so simple, so very funny.

Patrick