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esa after 30th march.
hi all just to confirm
ESA claim after 30th March wont be paid pending a medical if failed a medical before (unless new/worse etc)
does the last esa failed medical decision date need to be after 30th march too?
or is it just claims after that date ?
thanks
It’s teh decision rather than teh claim; if someone’s found fit after 30/3 then they can’t reapply; it applies to tribunal decisions too, preventing someone reclaiming after an unsuccessful Tribunal after 30/3.
is it dan. oh good job I asked. thanks very much. so its the tribunal decision too, even if the original decision appealing was before 30/3
is it dan. oh good job I asked. thanks very much. so its the tribunal decision too, even if the original decision appealing was before 30/3
That was my reading of it yesterday; they’ve drifted from “decision” and defined “determination” to create a new category that can (and does) include Tribunal decisions
It’s not the date of decision but the date of claim that determines whether the new version of Reg 30 applies. The new reg applies to new ESA claims made after 30 March as well as ESA pending appeal where the decision under appeal is in respect of a claim made after 30 March.
Even if the new reg applies it doesn’t follow that a new ESA claim or ESA pending appeal cannot be paid unless there’s worsening or new condition. It all depends on the nature of the last determination finding you fit for work and, where it was a failed WCA, whether that determination was a “relevant decision” as defined by the new Reg 30.
[ Edited: 10 Mar 2015 at 11:05 pm by Tom H ]What is the purpose of subpara (b) of reg 2(2) in SI 2015 / 437? Does that include anyone who would not be covered by sub para (a)? It would have done on the earlier draft version but in the final version I can’t see who would fit in subpara (b) but not (a).
The amended Reg 30 affects payment of a new claim made after 30/3. However, once that claim is decided the amended Reg no longer applies re that claim. So if you failed the WCA re that claim and appealed you need sub para (b) to make it clear that any award of ESA pending appeal is also subject to the amendments.
[ Edited: 10 Mar 2015 at 02:08 pm by Tom H ]you’ve all lost me now! lol
so if someone makes a new claim 1/4/15 but they failed a medical 1/10/14 and condition the same will they be paid pending a new WCA or not?
you’ve all lost me now! lol
so if someone makes a new claim 1/4/15 but they failed a medical 1/10/14 and condition the same will they be paid pending a new WCA or not?
Not.
[ Edited: 10 Mar 2015 at 04:46 pm by Tom H ]
There are two steps to look at here. The first one is to decide whether the new rules or old rules apply..
Your client’s new claim was made on or after 30th March so the new rules do apply.
Next step is to look at under what situations a person does not get treated as having LCW and therefore not get paid pending WCA. The new reg 30 para (2)(b) says that if the person was found not to have LCW in the last determination preceding the new claim they don’t get treated as having LCW whilst they wait for a decision, however long ago this was. This applies to your client so they don’t get anything whilst waiting for the WCA to be done
[ Edited: 10 Mar 2015 at 04:54 pm by Damian ]I edited my last post (but then removed it) to say that it would be that way until the UT has a chance to decide whether Reg 30 is effective. There’s a fundamental problem with it in my view which I’ll not go into here (especially as I may be wrong about it) but if I get the chance I’ll test at the UT.
It’s teh decision rather than teh claim; if someone’s found fit after 30/3 then they can’t reapply; it applies to tribunal decisions too, preventing someone reclaiming after an unsuccessful Tribunal after 30/3.
So this is wrong?
It’s teh decision rather than teh claim; if someone’s found fit after 30/3 then they can’t reapply; it applies to tribunal decisions too, preventing someone reclaiming after an unsuccessful Tribunal after 30/3.
So this is wrong?
The decision and the claim are important but the amended Reg 30 applies to claims made after 30 March.
If someone is found fit after 30/3 (but the claim was made before 30/3) then the present 6 months’ rule would apply which, depending on the facts of the case, might prevent ESA being paid on a new claim until a new WCA. Although, ESA pending appeal would still be payable as it is at present.
The purpose of the new Reg 30 is to restrict ESA being paid on a re-claim irrespective of the amount of time since the last unsuccessful WCA decision. An unsuccessful tribunal doesn’t really make a difference to that. Its other purpose is to prevent ESA being paid pending an appeal. Unless you’re appealing a “relevant decision” you’ll be denied in the absence of a new/worsened condition.
[ Edited: 10 Mar 2015 at 10:54 pm by Tom H ]
Reg 2 (2) (a) states ‘makes or is treated as making a claim for an employment and support allowance on or after 30th March 2015’ so decision dates do not matter. It is the date of claim that matters or in the case of backdates it is the date the backdate goes back to that matters. So if a claim is initiated on for example 29th June 2015 but the ESA maximum backdate of up to 3 months is applicable and the claim is treated as made on 29th March 2015 then the anti-looping regs do not apply. They only apply to claims made or treated as made after 29th March 2015.
Reg 2 (2) (a) states ‘makes or is treated as making a claim for an employment and support allowance on or after 30th March 2015’ so decision dates do not matter. It is the date of claim that matters or in the case of backdates it is the date the backdate goes back to that matters. So if a claim is initiated on for example 29th June 2015 but the ESA maximum backdate of up to 3 months is applicable and the claim is treated as made on 29th March 2015 then the anti-looping regs do not apply. They only apply to claims made or treated as made after 29th March 2015.
I thought we’d established earlier that the date of decision didn’t matter, although the nature of that decision will remain important. For example, if you’re claiming ESA pending appeal at present and you lose your eventual appeal (regardless of whether the appeal hearing is before or after 30 March), your ESA pending appeal will be terminated under Reg 147A ESA Regs. In other words, you will be treated as not having LCW rather than being determined not to have LCW. Under the present 6 months’ rule, if you were to re-claim ESA we’d have to ask has your new claim been made more than 6 months since the date of the decision that was under appeal. If the answer to that was no then you’d not be paid ESA on the new claim until you’d sat a new WCA which could be months away. However, if you now make your new claim after 30 March, we’d have to ask what was the nature of the last determination preceding the date of that new claim. Well, it was a determination under Reg 147A treating me as not having LCW. Ok, so the new version of Reg 30(2)(b)(i) doesn’t apply and the new claim can be paid immediately even if there’s less than 6 months between the date of the new claim and the date of the decision that was under appeal. That’s just a quirk of the new rule but it laughably makes it easier to re-claim ESA than the old 6 months’ rule. The point being that the nature of the “last determination” will be important.
I disagree with your example of a claim made on 29 June and backdated to 29 March (not sure what you mean by “initiated on 29 June”). A claim is made for ESA when a properly completed claim form is received or a call providing all the info necessary to determine the claim is made. That’s the date that’s relevant for deciding if the new version of Reg 30 applies. So if you make your claim on 29 June the new version applies because the 29 June is after 30 March. And that remains the case despite the fact that the 29 June claim is backdated to 29 March. The reference to “treated as made” in Reg 2 of SI 2015/437 is to the situation where a defective claim is made for example and the DM gives the person a month to put the defect right or such longer period as is considered reasonable (see Reg 4G(5) or 4H(7) Claims and Payments Regs). If the claimant complies, the defective claim is treated as properly made from the date the defective claim was originally received. And under Reg 6(1F) C&P that claim is then “treated as made” from that date. So in your above example, if the 29 June claim was defective but the defect was corrected by 29 July the date of claim would be 29 June and 3 months backdating would run from the latter allowing arrears based on 29 March. Still, the claim would be “treated as made” on 29 June.
If you look at the wording of Reg 19 C&P you’ll see it is referring to the length of time you have for claiming. If you become ill you have the luxury of waiting 3 months before “making” your claim without losing out because you can ask for a 3 months backdate. Your period of limited capability for work (pLCW) would admittedly start from 29 March (although ESA entitlement and, therefore, payment of arrears would not actually start until 5 April due to the 7 waiting days), but your date of claim is the date your properly completed form/call is received. In Sch 4 to the C&P Regs “the day in respect of which the claim is made” would be 29 March. You could then make your claim “in the period of three months immediately following it”, ie by no later than 29 June.
Edit: Forgot to say that that’s a great name: the “anti-looping regs”.
[ Edited: 12 Mar 2015 at 10:34 am by Tom H ]Having now had time to look at these regs I agree with what Tom H has said above.
However I am still confused about the circumstances in which someone can get ESA while pursuing an appeal…
Edit ...having gone and done something else and come back to this I am no longer confused
[ Edited: 12 Mar 2015 at 03:29 pm by Victor ]