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

ESA payment pending WCA appeals

YP Adviser
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From The Autumn Statement:

“2.87 Employment and Support Allowance (ESA) – As announced by the Department
for Work and Pensions (DWP) on 27 November 2014, the government will prevent claimants who have been found fit for work at a Work Capability Assessment from being paid the ESA assessment rate unless their condition has changed or a new condition has developed.

The government will also extend the period of time that claimants may remain on Jobseeker’s Allowance (JSA) while sick without having to move to ESA, and pilot new approaches to supporting ESA claimants during the assessment phase and on return from the Work Programme. “

Does this mean a client cannot claim payment of ESA, after receiving a MRN, pending appeal?

Daphne
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No - ESA can still be paid pending appeal. What this proposal means is that the six month limit on a WCA in effect will disappear unless you have a new or worsened condition.

So for example, if you go through the appeal process and lose, currently you can submit a new claim 6 months after the WCA decision and you will be paid providing you meet the conditions and have a fit note. Under these proposals, you won’t be able to get ESA however long after the last WCA decision unless you can show the new or worsened condition.

It was first mentioned in the government response to Litchfield - see here -

http://www.rightsnet.org.uk/news/story/Government-announces-series-of-measures-to-further-improve-support-for-disa

there’s some discussion on it here -

http://www.rightsnet.org.uk/forums/viewthread/7436/

YP Adviser
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Ah yes ” Government announces series of measures to further improve SUPPORT for disabled people….” That’ll be why I missed it.  I look forward to that “regime” of support.

Thanks for the redirection. I knew I must have missed something.

Paul_Treloar_CPAG
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We’ve been thinking about this. There was a thought that effectively this could mean that they change the rule, in regulation 30 of the ESA Regulations, that you can be treated as having limited capability for work (the basic condition of entitlement for the benefit) simply on the basis of production of a medical certificate. At the moment this is subject to an exception such that if you have previously been found not to have limited capability for work (or have failed without a good reason to attend a medical or return the ESA50 form) within the last six months, then you cannot be treated as having limited capability for work in this way unless your health has worsened or you have a new condition. So what such a policy would do is to remove the “within the last six months” part. This would mean that once you are found fit for work, the only ways to get back on ESA would be either:

1. To challenge that decision; or
2. To prove you have a new health problem.

This would be very difficult for claimants with ongoing chronic conditions who, for example, due to illness do not attend a medical and then somehow do not appeal - that person potentially could never, under this rule, get back on ESA.

Conversely, there was a thought that the extent of the problem partly depends on exactly what is being proposed here. A written Statement (HCWS30) by Mark Harper, Minister for Disabled People, dated 27 November 2014, said, ‘…by next spring we plan to introduce a measure preventing claimants being paid the ESA assessment rate if they have already been found fit for work but have then made a repeat claim for benefit without developing a new health condition or having seen a deterioration in their current condition.’

That suggests that the envisaged rule will provide that a such a claimant can reclaim ESA and will be assessed i.e. have a WCA applied, but that they would not be paid it at the assessment phase rate pending application of the WCA, and will only get ESA if they actually pass the WCA this time. Still harsh (and deserving of opposition), but not as catastrophic as literally never being able to get ESA again. If that is right, then in answer to the point about people who do not appeal, the government will presumably say that they in fact they can get ESA again on a reclaim, including straight away if they have had a deterioration or a new condition, or after re-application of the WCA if they actually pass it. The government may justify this by saying, ”why should we pay them again until they have passed the WCA?”

Part of the answer lies in referring to very slow assessment times. If someone does think that they have got worse, but DWP doesn’t agree, their ESA reclaim continues but they will not be paid unless and until they actually pass the WCA, and at the moment that could mean a wait of several months or more. Another part of the answer could be in pointing out that requiring significant worsening or a new condition does not cover everything. In particular, the WCA itself changes from time to time, and the government (Chris Grayling) have said in the past that it would change as often as was needful in order to keep up with developments and the ‘modern workplace’. So the WCA could change, but a claimant who might then satisfy it could not get ESA on a reclaim until the WCA was applied and passed – even though as per above that might well take several months or more.

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“From April 2015, the government also says that it intends to introduce a measure to allow for a new extended period of sickness on jobseeker’s allowance (JSA) -

‘This will mean that claimants who expect to be sick for less than 13 weeks can opt to remain on JSA rather than switch to ESA. This will allow them to continue to benefit from the support of the Jobcentre to help them return to work – as soon as they have recovered from their health condition.’”

Perhaps they intend the fresh WCA to actually happen within 13 weeks?

Ros
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The Social Security Advisory Committee is now consulting on the proposals which they say are that -

- anyone seeking to make a repeat claim to ESA after they have been found to have limited capability for work, will need to produce medical evidence indicating a deterioration in an existing health condition, or the onset of a new condition

- ESA will not be paid to claimants in these circumstances pending an appeal

https://www.gov.uk/government/news/proposals-to-close-esa-loophole-may-have-unintended-consequences

SamW
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What ‘loophole’ do the government think they are closing? Repeat claimants will only get the same amount as they would do on JSA unless they are subsequently found to have LCW after a medical. They are only able to receive that ESA for as long as they are receiving a medical certificate from their GP.

Does government really have so little faith in the country’s GPs? It seems to me that they are implying that either they cannot be trusted to assess their patients’ health accurately or that they are able to do this but are complicit in their patients’ ‘playing’ the benefit system.

Things like this really get to me. These measures will not save the government any money through fair means. If they do save money it will only by sanctioning people who are not well enough to comply with the JSA requirements. If you take money out of it, the measure becomes yet more evidence of the DWP’s belief that the vast majority ESA are gaming the system and should be on JSA.

If they really think that people are exploiting a ‘loophole’ perhaps the government could try and close it by actually assessing people within 13 weeks and trying to ensure that these assessments are correct first time round.

Dan_Manville
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I fear there may be a non sequitur arising if this is implemented. There is a long tradition (if that’s the right word) of a margin of appreciation in Welfare Benefits; one decision maker is allowed to come to a different decision on ostensibly the same facts. Removing the facility for a claimant to at least attempt to take advantage of that is ethically questionable.

However, I fear that this government has forgotten how to spell effics.

Steve_h
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What worries me is that these “loopholers” will be forced to claim UC in the pilot areas.

Fran Maloney
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I’m not sure that they will if there’s an appeal in progress though.

In preparation for a pilot area starting down my way next year, I had a look at the commencement order and reg 3 (4) (a) seems to say no UC if an appeal is ongoing.

I may be misinterpreting “any other benefit” though. and it could have been amended since the original order.

Link: http://www.legislation.gov.uk/uksi/2014/1452/article/16/made

Tom H
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Paul_Treloar_CPAG - 05 December 2014 11:21 AM

..there was a thought that the extent of the problem partly depends on exactly what is being proposed here.

Proposed regs from 30/3/15 now available here

No payment of ESA on a repeat claim whilst waiting for DM/Maximus to decide whether your condition is new or has worsened.  Additionally, if DM decides no worsening etc claimant would still have to undergo a WCA but if claimant fails that then no ESA pending appeal against that WCA.

There’s a good chance that DM may simply rely on the previous medical report in order to fail claimant under WCA again once satisfied there’s no new or worsened condition. 

Eg,
(1) Claimant fails medical and, therefore, fails WCA.  Decision dated after 30/3/15.  MR is unsuccessful so appeals. 

(2) Claimant can be paid ESA pending appeal as normal.  Note: claimant did not have to make a claim for ESA pending appeal because his completed appeal form waived the need for such a new claim.  The proposed regs do not alter this situation re an appeal against the first failed WCA but see point (6) below for further appeals.

(3) FtT dismisses his appeal in (1) and the ESA awarded in (2) comes to an end.

(4) Re-claims ESA - no payment until DM satisfied that there’s a new or worsened condition (the explanatory memo for the SSAC published at the same time as the above regs states at para 3.5 that each case will be decided on its own merits, but it’s likely claimant will need some medical evidence of worsening etc).

(5) DM decides no new condition or worsening.  DM now has to make a new WCA.  In order to help him make that decision he has a choice: either refer claimant for new medical or simply use the failed medical in (1) above (after all, DM has decided no worsening etc since that medical).  Either way, no payment of ESA whilst waiting for new WCA decision.  DM decides that claimant fails WCA again.

(6) Claimant appeals this new failure of WCA.  The above regs propose an amendment to the Claims and Payments Regs in order to prevent this further appeal waiving the need to make a new ESA claim pending appeal.

(7) Claimant re-claims ESA.  Above regs prevent ESA being paid pending appeal.  Claimant can ask DM to review that position should he get a new or worsened condition pending appeal.

I can see a loophole, an arguable one anyway, in the draft regs.  We’ll see.

[ Edited: 11 Dec 2014 at 11:32 am by Tom H ]
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Tom H
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I’m cautious about commenting at all about this proposed change in case we get something much worse in its place. 

The government is unhappy with a situation where someone can repeatedly claim ESA, repeatedly fail the WCA and have to wait, at most, 6 months, perhaps claiming JSA in between, before being paid ESA again, less still if they can fail a further fast-tracked medical. The SSAC wants to know if the proposed changes might unintentionally penalise others. 

Well, it certainly would penalise those re-claimers with an unchanged condition who subsequently pass the further WCA, especially if having to wait for a tribunal to pass them.  For they would, unlike at present, have been denied payment of ESA from month 7 until the tribunal hearing.  That could be some wait for someone whom the eventual WCA would vindicate as having had LCW all along.  Whilst waiting they would have had, because of no new condition/worsening, to claim JSA which, in hindsight, would have been shown to be unsuitable for them.  Presumably if JSA was so unsuitable that it made the person’s health significantly worse the government would point to the option under Reg 30 of receiving ESA at that point.  I’m sure they accept that that’s not a good state of affairs, ie JSA or having no money inducing the worsening, not least because it risks making Reg 30 self-fulfilling and, therefore, self-defeating, but I suspect they’ve concluded in private that that’s the best protection they’re prepared to offer to those claimants who slipped the WCA net the first time around.  Otherwise they doubtless feel they’d open the re-claim door to the others mentioned above whom they wish to keep out.  It’s certainly not an approach which errs on the side of caution and, therefore, risks seriously affecting the health of many, especially people who are not sufficiently empowered/assertive/confident to take advantage of Reg30 following a deterioration.  That said, the 6 months’ rule has always been based on the same approach.  But times change.  That wait and see approach no longer seems to sit comfortably with the Three Judge Panel of the UT’s reasoning in IM which acknowledges the importance of risk management principles when considering the protection offered to claimants, albeit in the context of Reg 35 rather than 30.

Of course, the problem for the govt is the subjective nature of the WCA.  As we know, it introduced Reg 6(2)(r) D&A for ESA and its predecessor 6(2)(g) for IB precisely to avoid having to show that there’d been a change in the claimant’s clinical condition when it wanted to remove an award.  That recognises that the WCA/PCA have always been tests of functional impairment albeit arising from mental/bodily disablement.  A new medical opinion, as we know, became enough to justify ending an award, although the old medicals still have evidential value, at least to tribunals.  But it followed that ESA claimants could now find themselves at the mercy of, in effect, HCPs’, DMs’ and tribunals’ value judgments about which descriptors applied.  A situation exacerbated by the HL’s decision in Moyna which held that there was a broad range of reasonable responses available to tribunals and a tribunal would err only if it went outside those bounds of reasonable judgment. Ok, no appellate process is infallible but the upshot of the one we have in social security is that a person can quite easily fail the WCA when they should pass and vice versa.  Consequently, to premise, as the govt appears to have done, its proposed change to Reg 30 on the basis that there’s all these people out there who definitely don’t qualify after having failed a single WCA and that there’s something not quite right about people re-claiming after the current 6 months is verging on the disingenuous.  It suggests an equivalence between the various motives claimants may have for re-claiming. 

It’s not ideal, but a rule which, say, penalised new claims in the way proposed only after, say, a third consecutive WCA failure (“three strikes and you cannot be treated as fit for work”) would at least offer slightly more protection and eventually keep those considered by govt (not me) as “undeserving” out.

It’s also wrong to suggest that the people who are affected by the removal of the 6 months’ rule will be broadly the same ones affected by the proposed removal of ESA pending appeal.  It’s possible, for instance, for someone to be accepted as having a new or worsened condition and whose ESA, therefore, re-starts under Reg 30 pending a new WCA to go on to fail that WCA (see my next post).  They could only then get ESA pending appeal if they could show that they’d further worsened etc since that latest WCA failure: the previous worsening, accepted by the DWP, would no longer do.

Finally, I agree with CPAG that clarification over what constitutes a worsening/new condition is needed.  It would be odd, on the one hand, if a new clinical condition without any reference to its functional impairment could get you back on ESA but, on the other, you might not want to go as far as UT Judge Jacobs in CIB 1959 & 2198/97 discussing significant worsening for IB Reg 28, the equivalent of Reg 30:

“30. Also, the evidence did not show that the claimant’s disablement had “significantly worsened”.  Those words are not defined.  If the condition applies, its effect is to treat the claimant as satisfying the all work test.  The words must be related to that test.  In other words, a claimant’s disablement has significantly worsened only if [it] is proved to have worsened to the extent that it is fair to assume that the claimant would satisfy the all work test if subjected to it.  Certainly, when there is actual evidence that the claimant would not satisfy the test, the adjudication officer is entitled to proceed on the basis that the claimant’s disablement has not “significantly worsened”.

[ Edited: 21 Dec 2014 at 10:47 am by Tom H ]
Tom H
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Continued from last post…

It’s not clear to me, given that the standard of proof is the balance of probabilities (51%), how a DM could think it “fair to assume” a claimant would pass the test without effectively carrying out the test, making Reg 30 n/a, ie the claimant would effectively have LCW under Reg 19, obviating the need to treat him as having it under Reg 30.  Judge Jacobs’ observations were obiter as he found that IB Reg 28 did not arise but UT Judge Turnbull subsequently doubted the correctness of CIB 1959 & 2198/97 in CIB 245/2009 at para 8.  At para 10, Judge Turnbull guided the FtT on how, in the event of its dismissing the claimant’s appeal against the WCA, to approach the claimant’s contention that their condition had also significantly worsened prior to the WCA concerned.  He reserved judgement on that issue to allow a future UT the benefit of fuller argument but I think his inclination was that there would be no contradiction between finding significant worsening and later finding that the person still failed the WCA (to be fair, Judge Jacobs’ interpretation didn’t completely rule that out either).  In any event, Reg 147A ESA Regs was subsequently introduced (ironically to attempt to stop people “looping” around the ESA system) and its paras (2), (3) (4)(a) and (5)(b) provide precisely for a situation where a claimant is accepted as having either a new or significantly worsened condition but nevertheless still fails the further WCA carried out whilst the appeal against the previous failed WCA is still pending.  The proposed changes we’re discussing also amend Reg 147A but only in respect of when it applies rather than substantively.

We know the above principle works the other way round, ie, just because a person cannot demonstrate worsening etc doesn’t mean their chances of persuading a DM or tribunal to later pass them under the WCA are reduced.  Whilst the DWP doesn’t suggest otherwise in its presentation to the SSAC, there’s a danger that that could be lost sight of.

Given that ESA caselaw has also adopted the principle of reasonable regularity in IB, can it be assumed that a failed WCA has already accommodated some worsening?  Is significant worsening then something greater than the type of worsening ordinarily expected to occur by nature of the medical condition and that which has already been accommodated by reasonable regularity?  It could become very complicated.

[ Edited: 21 Dec 2014 at 11:55 am by Tom H ]