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Client lodges appeal, told to make new claim for ESA
I’m raising this as a follow-up to http://www.rightsnet.org.uk/forums/viewthread/5730
Brief summary:
Claimant on IS goes through ESA conversion, 0 points.
MR is started but he gets no JSA and lives on DLA only. He says this is because he told JC+ he is ill, so they refused JSA.
JSA say they refused because he said he was not looking for work (he has learning difficulties)
However, main beef is that having lodged an appeal, I’m told that he has to close his JSA claim by phoning one number, then make a new claim for ESA by phoning another number.
The DWP response to a series of questions, as posted by Peter Turville, seems flatly to contradict this information.
I’m quite prepared to be proved wrong – but…
Copy of my most recent email to DWP is below.
‘Thank you for your recent answers to my queries.
I remain very worried that a vulnerable claimant such as this man, who has been told (by GP etc) that he is not capable of work will be accidentally denied JSA in the Mandatory Reconsideration period because he repeats this advice when claiming JSA.
I am also writing further to query the need for a new claim for ESA when an appeal has been lodged.
I had understood that a new ESA claim is not required where a claimant has lodged an appeal.
I note that any JSA claim made during the Mandatory Reconsideration period needs to be ‘relinquished’, but to require one claim to be closed, a new one to be made and for the onus to fall on the claimant to do so seems quite a lot of work, especially for a vulnerable claimant.
A series of answers to written questions put to the DWP by an Oxfordshire advice agency elicited the following responses re. ESA/appeals/claiming:
[extracts from the DWP response on the previous thread follow, I can’t seem to copy them back in to this box - in essence they say JSA claim must be ‘relinquished’ but no new ESA claim is required]
As extracts can sometimes mislead, I attach a link to the full document - http://www.rightsnet.org.uk/?ACT=39&fid=3&aid=625_ZvFvCakAZssZ1P0tlKvR&board_id=1
I would be grateful if you could provide some clarification on this matter.’
And a new ‘un today which raises some other problems (unintended consequences?)
Client seeks MR having been found fit for work (ESA)
Goes on JSA – which includes Disability Premium and so is greater than Assessment ESA but less than what she was on
MR Notice issued. Client appeals. HMCTS accept appeal is lodged.
Client is told by JC+ that she must make a new claim for ESA.
Does so.
Claim refused as comes within 6 months of finding she is fit for work.
Told she must seek MR of this decision.
JC+ then correct this, and put her on to ESA Assessment Rate (less than JSA as she loses DP!)
Client’s HB stops when she comes off JSA.
Chaos. And a distressed, depressed claimant.
For the HB just do a nil income statement to the council for period concerned.
Thanks, yep, done.
Guess what my third case of the day is….?????
Claimant’s MR successful, I was told she should close her JSA claim and ESA would be restored in 2 days.
JC+ staff now tell her and her support worker she mist re-claim ESA and are rather rude; “It’s not rocket science you know”.
Where’s that Saturn 5 I had on standby….?
For the HB just do a nil income statement to the council for period concerned.
With the ATLAS system notifying LAs about these things a lot of HB processing systems will suspend a claim automatically on cessation of IS/ESA/JSA. When an assessor looks at it they will reinstate as a matter of course if they can see ESA going back into payment. No need for a nil income statement as long as there’s less than a 4 week gap in entitlement.
I warn my clients that it’s likely to happen and not to worry about the sweary letters. It’ll all get sorted in the wash, so to speak.
Where’s that Saturn 5 I had on standby….?
In situations such as that I prefer these
Don’t tempt me…..
JC+ staff now tell her and her support worker she mist re-claim ESA and are rather rude; “It’s not rocket science you know”.
Where JSA (or IS) has been awarded, there is no need to make a new claim for ESA following an unsuccessful MR if the claimant then wishes to appeal - but the claimant must ask for ESA to be re-instated (but that does not mean a new claim!) - “The award of JSA is terminated by means of a supersession and a pending appeal award of ESA is made without need for a claim. ESA is awarded from the day after the JSA award ends” - DMG Memo 20/13 para. 8 example 1. Presumably the claimant will have to wait until HMCTS have notifed DWP of the appeal (see below). In practice DWP staff may need to be reminded of the guidance!
In a cases where the claimant did not make a claim for JSA (or IS?) DWP state ‘ESA will be put back into payment at the assessment rate from the date DWP receive notification of the appeal from HMCTS’. Assessment rate ESA will then be paid for the MR period as long as medical evidence is provided (16/12/13 - written answer from Esther McVey). Again DWP staff may need to be reminded of the guidance and the Minister’s answer!
If DWP staff don’t understand this simplification of the system or the guidance presumably it is acceptable to insert a Saturn 5?
[ Edited: 4 Apr 2014 at 02:03 pm by Peter Turville ]Thankfully we have had no problems in our area getting clients back onto ESA following a MR and appeal to HMCTS. No new claim is needed. Also they have paid backdated for the whole of the MR period, with sick notes provided (provided client has not claimed JSA of course ).
Where we have had problems is HMCTS delaying putting the appeal on their system and problems notifying the DWP. HMCTS have told me they e-mail the DWP section that made the decision - but this is not the BDC anymore, so we have had to press the BDC to contact the section that made the decision to confirm they have been notified of valid appeal.
Am I right in thinking that DWP staff may actually lack up-to-date guidance here?
DMG Memo 20/13 has the example referred to above but it also refers to Advice for Decision Makers Chapter A5 - which at the moment is ‘PIP and UC only’ and says nothing useful on the matter of ESA/JSA and the mess that is developing over the lodgment of appeals and the ‘re-claiming’ of ESA.
Am I missing something or is the DWP making it up as it goes along at the moment?
IB conversion to ESA 0 points.
ESA claim is terminated during a Mandatory Reconsideration period to allow a JSA claim to be started for the interim until Notice issued. During this time client is sentenced to 6 weeks in prison. M R Notice is waiting for her when she is released and we send it off for appeal. After a week or so a call to Tribunal Service in Glasgow lets me know that they have notified DWP with ‘Compliant Appeal’ notice (they have me down as the rep but didn’t send me a copy) So far so good.
I sent email to Customer Services asking for client to be paid her ESA pending appeal, I attach GP line. Three days later I get a call from Benefit Centre advising me that ESA claim was shut down because she was imprisoned.
But ESA claim was terminated in favour of JSA claim before she was put in prison. JSA would have been closed but they can’t close a terminated ESA claim can they?
Client has been so desperate for money that she has made a new ESA claim under worsening conditions, after she was advised this was all she could do by Enquiry Line, this is with a decision maker.
Appeal will go ahead when we get a date and it will be an opportunity to highlight this crazy situation but in the meantime someone who suffering from emphysema, seizures and depression has had no benefit money for three weeks.
when client eceives the letter from tribunal confirming appeal is lodged send a cpy of the letter to esa unit as they will pay on production o fthe letter even if the tribunal copy has not got onto their system yet, I know we are doing t e job for the DWP but sometimes its quicker that way
“JSA would have been closed but they can’t close a terminated ESA claim can they”?
As a matter of law, nothing gets “closed”. Claims cease to subsist once decisions are made on them (s8(2)(a) Social Security Act 1998). While in prison an award should not be taken off the system. For con ESA/JSA a person is simply disqualified from payment for the period. For IR ESA/IB JSA the applicable amount is reduced to zero. Once the person comes out benefit becomes payable again. It’s a matter of simple administration thrown into chaos by unwieldy computer software and a basic misunderstanding of the law.
Where an ESA award is terminated due to failing the WCA it should be left on the system for a month to see if an MR comes in. Then if the decision to terminate is not revised, then left on for another month, or longer, until they get notification of the appeal. Then benefit should be just put back into payment. They might have been taken the ESA award off the system if she stopped sending in sick notes. They shouldn’t have done as the MR challenge was in.