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

esa new condition

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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This isn’t my case so I’m not sure of all the details but the basics are that client was on ESA, reassessed and failed LCWA with nil points. He asked for MR, signed on JSA during MR period. Could not sustain JSA claim so went back to jobc+ and made new claim for ESA on basis of new condition. MR came back later upholding original decision, client appealed to Tribunal and awaited ESA being put back in payment pending hearing.

The new ESA claim was then put in payment with substantial backdate. DM is apparently saying that payment will be at assessment phase rate until new LCWA carried out and any components will be added after week 13 if he passes new LCWA.

There is a one week gap between old claim terminating and new claim starting.

The week gap will presumably be addressed by his original appeal. Is the DM correct to put the new claim in payment at assessment rate pending redetermination or should the claim on a new condition be linked back to the original claim?

Edited to change misleading title

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Not really sure I understand the problem here;

1. If (when) he gets ESA pending the outcome of the appeal, this will be at the assessment rate.

2. On the new claim, he is correctly being paid the assessment rate until the WCA has been carried out.

So other than the week’s gap between claims, there’s no issue - whether he is paid assessment rate on the new claim or assessment rate pending the appeal outcome on the old claim, the amount of benefit is the same.

If he wins the appeal, he gets arrears of whichever component is awarded (plus basic rate ESA to cover the week between claims when he wasn’t receiving JSA) plus that component on an ongoing basis.

Unless, of course, the new WCA on the new claim takes place before the tribunal hearing and he fails that WCA. In which case any award made by the tribunal will be limited to the date of the new WCA decision.

Edited to add: assuming he has Med3s to cover him from the date of the negative WCA decision that he has appealed, then the week gap will/should be closed by the old claim being put back into payment pending the outcome of the appeal (rather than by the result of the appeal itself).

[ Edited: 30 Sep 2014 at 03:11 pm by past caring ]
BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Thanks. I may not have explained properly.

SHowells - 30 September 2014 03:07 PM

If he wins the appeal, he gets arrears of whichever component is awarded (plus basic rate ESA to cover the week between claims when he wasn’t receiving JSA) plus that component on an ongoing basis.

 

This is the bit I am unsure about. If he wins his tribunal and gets say, WRAG component, will this apply across to the new claim? Or will the WRAG component terminate from the date of the new claim and he be stuck with 13 weeks at assessment rate (assuming he eventually goes on to get in the WRAG again on the new claim following new LCWA)?

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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regulation 5… where paragraph 2 applies

(1)... the assessment phase…

(1)(a) begins on the first day of the period for which the claimant was previously entitled to ESA

(2)(b) (i) the current period links to the last period by virtue of reg 145 (yes it does)
      ...
      (v) a determination is made in relation to the current period of LCW that the claimant has, or is to be treated as having LCW other than under regulation 30

And there’s the problem because the deemed LCW at the start of the new period is by virtue of reg 30 so the assessment phase starts afresh. Unless The appeal wins, then the assessment phase will roll back to the begininng of the previous period of LCW.

If he wins his tribunal and gets say, WRAG component, will this apply across to the new claim?

yes, up until he’s assessed on the new claim then res judicata might step in. Otherwise the assessment phase is over and he’ll continue, effectively in the same period of LCW until he’s reassessed.

[ Edited: 30 Sep 2014 at 03:59 pm by Dan_Manville ]