Fit for work decisions and 6 month reclaim rule

This is hopefully straightforward and I’m sure you’ve all come across this before.

Client (new to me) was on ESA until 30/01/14, refused based on a decision that he was FFW after medical in December 2013.

After requesting an SOR, he made another claim for ESA, from 17/04/14, on 07/05/14. He advised the DWP that he had PTSD which had not been considered. As this was a long-standing illness he hadn’t told them about previously he was treated as not having a new condition or a worsening and his claim was refused. He then put in an MR of THAT decision (which in my opinion was actually correct), and this was also refused. The refusal letter (received in August) stated that they could not revise this decision because “Following the WCA assessment medical it has been decided you are fit for work”

We claimed again from 01/10/14. Over 6 months had passed since he had had a medical and a FFW decision, but the DWP has now refused his ESA claim on the basis that he was found FFW on 17/04/14.

This is clearly pants, but before I lodge the MR can you give me some pointers, please? In my mind the decision of 07/05/14 was about the 6 month rule, not a fresh finding on his LCW. Could you point me in the direction of the appropriate regs and any case law that establishes that the last Capability for Work decision was the one in January?

Thanks

If the April decision was a LCW decision, then your client falls foul of the six month rule. The new claim was correctly refused if the condition pre-dates the LCW decision. The DM could have been looking to revise/supersede the decision on the grounds of being in ignorance of a material fact, namely PTSD, but it’s not apparent that that happened.

If your client was found fit for work in April, was he notified? It seems not. I’d say the 17/05/14 decision should have been a response to his request for reconsideration and as such ought to be appealable.

What would I do? Appeal the LCW decision - whenever it happened - and bung in a complaint.

CPAG p.1006 (point 7) for background.

Only an actual determination that he did not have LCFW following the April claim (or a failure to supply information or attend a medical following that claim) starts the clock running again.  If the decision on the April claim was simply to accept that she can’t be treated as having LCFW on account of the DWP not accepting that it was a new condition (or deterioration) then the clock that started in January did not stop running in April.  If so, then the October decision is wrong.

Unusual to stay on ESA for over a month following an unsuccessful medical - are you sure it wasn’t a migration case?

In any event, R(IB) 8/04 is the caselaw you’re looking for.  It confirmed that the 6 months starts from the date of decision finding the person unfit for work.  That remains the case in ESA.  The other principle of R(IB)8/04, ie regardless of when, within the 6 months, a new claim is made, it can be paid from, at the very latest, the end of the 6 months has not, unfortunately, survived into ESA.  Instead, the 6 months is run back, in this case, from 7/5/14 to deny the person payment unless there’s (i) a new or significantly worsened condition, (ii) a new WCA, or (iii) a new claim made whose “date of claim” is outside the 6 months.  Here, the failed WCA decision is dated 30/1/14 so, if we assume (i) and (ii) above do not apply, the earliest date of an immediately payable new claim would be: 31/7/14. 

I’m surprised the DWP have entertained his Oct 2014 “new claim” at all on the ground that his 7/5/14 claim is still active.  The fact they have entertained it suggests that some decision must have been made on the May claim which brought it to an end.  That decision could have been a WCA, eg they could have re-used the Dec 2013 medical (unwise I know, given client was asserting PTSD which the Dec medical was unaware of, but not illegal).  However, it seems they have just focussed on the issue of whether the PTSD is a new condition and, upon deciding that it wasn’t, have decided there’s no entitlement re the May claim.  That’s wrong as the May claim could have continued until a new medical took place (and if successful arrears could have been paid from 17/4/14).

As a decision, however legally dubious, on the May claim was made and probably did not involve a new WCA, there is absolutely no reason on the info provided why the 1/10/14 claim cannot be paid immediately.  In fact, if the client got a backdated sick note, ESA arrears on that claim could be paid upto 3 months back, ie from 1/7/14, even though the latter date is within 6 months of 30/1/14 (it’s the “date of claim”, ie 1/10/14, which you run the 6 months back from not the date the arrears are payable from).

So the Oct decision is almost certainly wrong. 

Incidentally, I don’t necessarily agree that the PTSD isn’t a new condition for the purposes of the May claim.  Whilst Reg 30 requires a “specific disease or bodily or mental disablement” not to have been suffered at the date of the earlier determination, the rationale for that must surely be that the disease/disablement concerned would have been considered under the earlier assessment.  If the PTSD wasn’t considered then it would be absurd to interpret Reg 30 literally.  So, yes, it would require a purposive interpretation of Reg 30 to class the PTSD as one not suffered on 30/1/14 but I suspect judges would be quite happy to do that here in order to avoid absurdity.  I’d, therefore, appeal the May decision.  Only thing is a tribunal might refuse jurisdiction re that appeal (despite a MR having been done) on the grounds that the decision that PTSD was not a new condition was merely a Reg 30 determination not an outcome decision itself.  As stated earlier, I can’t see how the May claim was validly ended.

Edit: the purposive approach is not without its difficulties of course.  What if a person deliberately failed to mention a condition (and we’ll assume his sick note mentioned his main disabling condition(s) only)?  If his revealing the condition for the first time after failing a WCA allowed him to escape the 6 months’ rule that would be a little absurd also.  Perhaps the principle of not profiting from your own wrong could be used in individual cases to avoid such abuse of the rules.  It seems the failure to disclose PTSD here, whilst deliberate, wasn’t calculated.

I too have a case just like this. My client was claiming ESA into Jan 2014 while awaiting a medical decision, but his doctor declared him fit for work. He therefore claimed JSA, closing his ESA claim. Once his JSA was awarded, he then got a letter stating he failed to attend a medical, a mere day before he claimed JSA. He tells me this is the first he knew about the medical, but he did not challenge the decision at the time because he felt it irrelevant as he was now on JSA.

Unfortunately, in late June his health worsened and his doctor signed him off work, so he had to stop claiming JSA, and reclaimed ESA. Because this was (just) within the 6 months since the FTA WCA decision, his claimed was nilled until he attends a new WCA, and we know how long that might take.

This month he was advised to claim JSA (he stayed on ESA waiting for a medical without any income…). This claim is ready to pay but won’t because his ESA is still open. I spoke to a couple of people at the relevant benefit office about this case through escalation lines and they asserted that if my client closed his ESA claim, the DM would make a new decision that he has not attended a medical, therefore restarting the 6 month clock, stopping him from claiming ESA.

The previous two posts suggest this is wrong, however I am clearly going to need to back up this assertion with some legislation or case law, so please can somebody advise what this might be? I think he should be able to claim ESA NOW backdated from the day after 6 months from the previous disallowance, but I am being advised by benefit centre staff that he cannot do this, which seems perverse. If only his health had deteriorated a few weeks later, he would have not had any problems.

In the mean time I think my plan is to get my client to close his ESA claim so he can at least get an income from JSA, albeit it being the inappropriate benefit for him, whilst at the same time we have sent a (very late) reconsideration request against the ESA FTA WCA decision in January to try to get that revised. If we can get that decision revised, then the unpaid ESA up until he claimed JSA this month could presumably then be paid as it would no longer be the case that he needed to have a WCA before being paid, and he could then claim ESA again as there would be no 6 month barrier.

From the timescales you give it seems very unlikely that the legal ground for his ESA ending was failure to produce a sick note.  That’s because under Reg 32A ESA Regs a DM has to wait at least 6 weeks after the last provided sick note runs out before he can, if he wishes, treat the claimant as fit for work.  He’s not obliged to do so and can simply wait for the outcome of the WCA.  Of course, the absence of sick notes in those circs would mean the claimant wasn’t paid assessment rate ESA pending that WCA (Reg 30).

Its seems far more likely that the reason the ESA stopped was simply that he no longer satisfied section 1(3)(f) Welfare Reform Act 2007 which makes it a basic condition of ESA entitlement that you are not entitled at the same time to JSA.  That’s very important because even if an ESA DM, innocently or otherwise, subsequently made a failure to attend (FTA) determination under Reg 23 ESA and refused to remove it from the DWP computer, that would not later trigger the 6 months rule.  That’s due to the wording of Reg 30:

“that it has not, within the 6 months preceding the date of claim for employment and support allowance, been determined, in relation to the claimant’s entitlement to any benefit…which is dependent on the claimant having limited capability for work, that the claimant..is to be treated as not having limited capability for work under regulation..23..” (my emphasis)

In the above scenario, any Reg 23 determination could not possibly be in relation to his entitlement to ESA because his entitlement has already ended due to JSA.  However, as with Karina’s client, I doubt there’s an outcome decision re your client’s June claim that can be MR’d/appealed.  Just a Reg 30 determination.  As you indicate, the June claim remains open pending a WCA. 

The quickest way to be paid ESA would be for client to withdraw his June claim, but only prospectively, ie from now, rather than retrospectively, ie from June until now.  The DWP don’t understand that this is possible and they’ll probably insist that it is either a retrospective withdrawal or nothing, in which case the only option appears to be withdraw retrospectively, re-claim ESA immediately (which would be paid) and then at some future point contest that the earlier claim’s withdrawal was effective.  There is caselaw which holds that a withdrawal of claim is only effective if done freely rather than, in effect, under duress.  It doesn’t seem legally possible to directly challenge by MR/appeal the retrospective withdrawal of your claim because the claim is treated as never having been made and, therefore, there is nothing to challenge.  The challenge would have to be indirect, ie as part of an appeal against a separate decision.  For example, MR/appeal the decision awarding assessment rate re the new ESA claim which is made immediately after the withdrawal of the old one.

And, of course, it’s nonsense to suggest that if he re-claims JSA now the DM will make a new FTA decision which will re-set the 6 months clock for future ESA claims.  If he chooses to claim JSA now, a decision will be made ending his ESA.  By appealing the latter, a tribunal would be able to consider his entitlement from June.  It would almost certainly award him ESA from June till now based on the above Reg 23/30 argument.

Just re-read your post.  So the medical was supposed to have taken place one day before he claimed JSA.  In that case, the dates JSA entitlement started and ESA entitlement finished are going to be important.  If the chronology is such that ESA was ended due to a FTA determination under Reg 23 then the 6 months rule is a problem for the later June claim.  In which case, asking for a late MR of the FTA, as you’re suggesting, is wise for the reasons you state.  Otherwise you can still MR/appeal the decision that’s about to be made ending his ESA due to his imminent JSA entitlement.  There’s nothing legally wrong with the decision itself to end that ESA given section 1(3)(f) mentioned earlier but by appealing you get the chance to have a tribunal look at the issue of entitlement throughout the claim, ie from June onwards.  For instance, you could argue before that tribunal that client had significantly worsened since the FTA in Jan and so ESA should have been paid from day 4 of the June claim (he would have had to serve waiting days).

Thanks for your responses Tom.

Here is the action I have decided to take.

1. Request reconsideration of January FTA decision. If we can get that changed, then the ESA claim from June can be paid.

2. Get the JSA claim open by closing ESA claim and prodding JSA. This seems to be the quickest present way to get him some money.

3. Do a clerical ESA claim from the date after 6 months (and no more than 3 months before now) to try to get that ESA paid up until JSA claim starts.

4. Once JSA is in payment and client can cope with the potential wobbles to income and HB, reclaim ESA going forward.

I agree with you that it is nonsense that the DWP can recycle the 6 months. Just the position of a nefarious bee-bonneted civil servant…