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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

What happens to ESA during an MR for WRAG to SG

Pete C
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I thought I had seen a thread about this but I couldn’t find it!

My client is in the WRAG after conversion from IB (done under ‘scrutiny’, no ESA 50 or WCA as far as I know). The WRAG is very clearly wrong but I dont want to put in for an MR if it means the whole ESA award will end and she will have to apply for JSA.

It may be that the WRAG decision pre dates ‘mandys’ but my client says she never actually recived any letters about this and the first she knew of it was when she was asked to do a WFI so i imagine it wasn’t all that long ago

Any advice gratefully recieved!

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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I’d very very surprised if it did end.

The mechanism for ESA to be paid during an appeal on no LCW is at reg 30 and specifies that a person can be treated as having LCW once an appeal’s made and medical certificates are supplied.

From WRAG to SG there’s no need to be treated as having LCW because they’ve already got it.

Tom H
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Generally, a MR application will be treated as an application under Reg 3(1)(b) D&A.  As such it would allow the decision to be changed on any grounds including the DM taking a different opinion of exactly the same facts.  Consequently, there’s always a risk when seeking revision from WRAG to SG that the DM will go the other way: from WRAG to no LCW at all.  Obviously such an adverse outcome would eventually be appealable allowing at least the assessment rate ESA to be received pending the tribunal. 

However, it’s unclear whether a notice of revision from WRAG to no LCW could make a right of appeal subject to the claimant making a further MR against the revised decision.  If it could then the claimant might have no alternative but JSA during that further MR period.  Reg 3ZA certainly applies to a decision under section 8 as revised which is what the above demotion from WRAG to no LCW undoubtedly is.  However, the law is silent on when a decision notice can include a MR invite (the law doesn’t even provide for a decision notice being issued at all – Reg 28 D&A only applies once you have a right of appeal).  Reg 3ZA presupposes that there is a provision permitting the issue of a decision notice (rather than being that provision itself). 

Consequently, I think we’ll have to rely on the common sense of DMs (I hear groans).  I had a 5k o/p the other day where they’d knocked off a couple of hundred pounds on revision.  I was relieved to see that the revised decision notice did not include a new MR invite and, instead, referred to the MR notice that had separately been issued to the client.  So we could go straight to appeal.  I think we cannot guarantee a client at this stage (when parts of the MR process have yet to be clarified by caselaw and/or further legislation) that s/he may not have to temporarily claim JSA in the above circs.  But at least they’d eventually be able to claim assessment rate ESA pending appeal so the financial risk of applying for MR could be limited to the value of the WRAC (obviously if you lose your tribunal then we know you lose the assessment rate as well and might subsequently find the 6 months’ rule and, in the case of CESA, potential problems re-qualifying, obstacles in continuing to receive ESA).

In conversion cases, the same principles apply.  The D&A Regs are not modified prior to the effective date of conversion.  Consequently, a MR of a conversion decision would be looking at facts at the date of the conversion decision rather than its effective date (see Reg 6(1)(b) of the ESA (Existing Award etc Regs).  So Reg 3(1)(b) D&A would again be the ground under which the DM would treat your MR application as made.

 

Pete C
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Thanks for the information, since posting the question I have discovered that the decision was made about two years ago and is consequently out of time for any appeal. As the appeal route is closed off I have submitted a lot of very cogent medical evidence and asked for the WRAG decision to be reviewed right back to the date of the decision as the decision (which was a migration from IB) was made on ‘scrutiny’ only and seems to have been made in ignorance of a great many very significant material facts. Given the person’s history I cannot imagine that anyone would say that they didn’t have limited capacity for work.

Rosie W
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Tom H - 10 April 2014 02:40 PM

I had a 5k o/p the other day where they’d knocked off a couple of hundred pounds on revision.  I was relieved to see that the revised decision notice did not include a new MR invite and, instead, referred to the MR notice that had separately been issued to the client.  So we could go straight to appeal. 

I think you were fortunate there Tom - I just had exactly the opposite from the Pension Service. Revised the OP down and issued new style OP decision saying no right of appeal till had reconsideration. There are several other things wrong as well. Unfortunately think the appointee in this case will have to go with mandatory recon + complaint so as not to miss out on the time limit. I assume that if they try to appeal without a MRN it will simply be returned by HMCTS.