CESA whilst appealing WCA decision

Hi all

Client was in support group so entitled to CESA indefinitely. Has now failed WCA completely, gone thru MR so lodging appeal. He was in support group for 18 months, so my question is, will he get assessment phase rate CESA whilst appealing or does the time spent in the support group count towards his 365 days max entitlement?

My understanding is, while the appeal is in process he will only receive the basic rate which is £72.40 weekly

If he went claim> assessment phase> Support Group> fit for work, then his 365 days starts from the first day of entitlement after the decision finding him fit.

If he spent any time in the WRAG before going into SG then that will have depleted his 365.

It depends on the number of days he has already spent getting cESA. If he was always in the support group, then the first day if his appeal-rate ESA will be the first in his 365 day entitlement.

So, if he wasn’t migrated from IB, the time in the assessment phase will have depleted his entitlement by 13 weeks, leaving 39 weeks (9 months) of cESA remaining.

So yes, as DManville, more or less.

Many thanks. I will check out history but I think it went IB - ESA assessment phase, failed WCA, appealed, back on ESA pending appeal, won appeal and in support group 18 months ago before CESA had expired.

I have already spoken to ESA maintenance who said his time on CESA in support group counts to his 365 days - but I did not believe them.

Could you point me to the law on this, given what ESA have already told me?

P.425 WBH 2014/15 for general overview. Basically reg 1A(5) ESA regs applies, which says (to paraphrase) - In calculating the length of period for which a person is entitled to a CB-ESA, the following are not to be counted: (a) days in which the person is a member of the support group.

Really couldn’t be much more straightforward in that sense.

Paul_Treloar_CPAG - 29 October 2014 02:16 PM

P.425 WBH 2014/15 for general overview. Basically reg 1A(5) ESA regs applies, which says (to paraphrase) - In calculating the length of period for which a person is entitled to a CB-ESA, the following are not to be counted: (a) days in which the person is a member of the support group.

Really couldn’t be much more straightforward in that sense.

Do you mean s1A(5) of the Welfare Reform Act 2012?

The issue is not whether time spent in the SG counts towards the 365 days?  It doesn’t.  The issue is whether he has a legal basis for claiming CESA pending appeal.  He doesn’t appear to.

nevip - 29 October 2014 02:29 PM

Do you mean s1A(5) of the Welfare Reform Act 2012?

Almost. I did in fact mean Welfare Reform Act 2007, of course :-)

Thanks Paul, must remember to concentrate more when posting post-lunch.

Sorry.  Yes, WRA 2007.  It was inserted by s51 of the 2012 Act.  Now it’s my turn to have problems concentrating.

Isn’t time in the assessment phase before giong into the Support Group disregarded as well?

About time limiting, check out the DMG too, ch 45 at 45888. This could be more successful than quoting the regs.

Thanks all.

Tom - I don’t understand why you say he may not have a legal basis for claiming CESA pending appeal, putting aside the 365 days issue when not in the support group?

PCLC - 29 October 2014 01:40 PM

I think it went IB - ESA assessment phase, failed WCA, appealed, back on ESA pending appeal, won appeal and in support group 18 months ago before CESA had expired.

The conversion decision (substituted with retrospective effect by the tribunal) put him in the SG where he spends the next 18 months before failing the WCA.  Assuming the MR takes less than 12 weeks to complete and he appeals, what’s any new award of ESA pending appeal going to link to?  It’s linking to the conversion decision’s pLCW.  And the reason he was awarded CESA upon conversion was not that he met the contribution conditions for ESA even back then; it was because he was deemed to meet those conditions on account of his having an existing award of IB.  His new ESA pending appeal cannot, therefore, be contributory via the linking rules because it’s linking back not to any tax years but to a deeming provision. 

The fact he’s not exhausted any of his 365 days since his conversion to ESA is irrelevant.  His converted CESA has not been time-limited.  It’s ended because he failed the WCA. 

The only way ESA pending his current appeal could be a contributory award would be if there is more than 12 weeks between the start of his ESA pending appeal and the old CESA ending and he satisfies the contribution conditions re the new ESA (unlikely unless he can rely on the relaxation rule in Reg 8 ESA, eg he was entitled to CA in 2012/13. 

Of course, he could be paid ir-ESA pending appeal now but I get the impression that he doesn’t satisfy the means-test. 

If he wins his appeal he’ll obviously then get ESA arrears.  But if his new tribunal puts him in the WRAG his new award incl arrears would last 365 days only.

Best hope is that a DM will get mixed up in the guidance and award it.

On reflection there may be a way.

Section 1A WRA 2007 as modified for conversion cases reads as follows:

“1A.—(1) The period for which a person is entitled to a contributory allowance
shall not exceed, in the aggregate, the relevant maximum number of days in any
period for which his entitlement is established by virtue of the Employment and
Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)
(Existing Awards) (No. 2) Regulations 2010.” (my emphasis)

Reg 16(1) of of the above 2010 Regs provides that the termination of a conversion decision by supersession, as is the case here, is achieved, in effect, by virtue of the 2010 Regs.

Reg 16(1A) then provides as follows:

“16(1A) Where–

(a) a person makes a claim for an employment and support allowance subsequent
to the termination of that person’s entitlement to an employment and support
allowance by virtue of these Regulations; and

(b) the period of limited capability for work in relation to that claim would link,
by virtue of regulation 145(1) of the 2008 Regulations, to a period of limited
capability for work in respect of which an award was made by virtue of these
Regulations,

that person’s entitlement to an award of an employment and support allowance shall
be determined in accordance with these Regulations” (my emphasis)

In addition, Reg 3(k)(ii) Claims and Payments Regs as substituted by the above 2010 Regs provides:

“3. It shall not be a condition of entitlement to benefit that a claim be made for it
in the following cases:

(k) the beneficiary..

(ii) was entitled to an employment and support allowance by virtue of the
Employment and Support Allowance (Transitional Provisions, Housing
Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations
2010 and has made and is pursuing an appeal against a later decision
which embodies a determination that the beneficiary does not have
limited capability for work”;”

PCLC, if your client actually makes a new claim for ESA (as opposed to relying on his completed appeal itself waiving the need under Reg 3 above for such a claim) and does so within 12 weeks of his old CESA ending, Reg 16(1A) above would apply.  That would allow his entitlement under that new claim “to be determined in accordance with” the above 2010 Regs as per Reg 16(1A).  If follows that the ESA pending appeal is “established by virtue of” the same 2010 regs for the purpose of section 1A(1) above. 

Consequently, he could rely on section 1A to argue that, given he has not to date exhausted any of the 365 days under his old CESA award (because he was in the SG throughout it), his new award of ESA pending appeal, because it links with that old award, can be paid, if necessary, for upto 365 days.

If the MR process lasted more than 12 weeks then the fact it is necessary to make your new claim within 12 weeks to take advantage of the linking rule in Reg 16(1A) would mean the new claim is going to be hit by the 6 months’ rule.  But as soon as the appeal is lodged then the new claim would escape that rule.  Perhaps best to make a protective appeal against the ESA pending appeal decision also and have it joined with your first appeal.  That would prevent DWP arguing that the first appeal, if successful, is for a fixed period.

Arrrrgh, my poor brain! Many thanks…...