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esa after 30th march.
Thanks all. Sorry Tom I’m even more confused now.
In your example claim after 30/3 could be paid even tho last decision failed medical and lost appeal.
So in order for a claim not be paid straight away after 30/3 the last decisions re failing a medical needs to be after 30/3 too? Inbox me or email if you like as I’m clearly not getting it
Thanks all
..So in order for a claim not be paid straight away after 30/3 the last decisions re failing a medical needs to be after 30/3 too?
No. As stated previously, it’s the date of claim that’s important; the date of decision is irrelevant.
This example may help. If not, we’ll leave it there.
1. Client claims ESA for first time in Nov 2011.
2. He passes a medical and is, therefore, found to have LCW. The law is important here but it’s often overlooked. The determination that he has limited capability for work is made under Reg 19 ESA Regs.
3. He remains entitled to ESA but then fails a medical in June 2015. A new Reg 19 determination is made dated June 2015 (ie after 30 March 2015 but it could equally be before 30 March – it doesn’t matter) that he does not have LCW and ESA ends.
4. He requests MR which is unsuccessful. MR notice dated, say, 15 July 2015.
5. He appeals. We know that the anti-looping regs may apply if someone either makes a new claim or appeals. So, as Damian mentioned earlier, whenever one of those events occurs we need to first check whether the anti-looping regs apply. By way of reminder they apply when a person:
”(a) makes or is treated as making a claim for an employment and support allowance on or after 30th March 2015; or
(b) makes and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the person does not have limited capability for work, and that decision was made in respect of a claim made, or treated as made, on or after 30th March 2015”
Here, the person is appealing a decision dated June 2015 but that decision was in respect of the claim he made in Nov 2011. Consequently, the anti-looping Regs do not apply. It follows that the current versions of Regs 30 and 147A ESA Regs and Reg 3(j) Claims and Payments Regs apply (the anti-looping regs amend each one of those regs)
6. He is awarded ESA from 16 July 2015. This is a new award of ESA for which he did not have to make a new claim courtesy of Reg 3(j) mentioned above. Because he did not have to make a claim there is no need to check whether the anti-looping regs apply. And, as usual, he can be paid ESA under this new award because Reg 30(3) ESA Regs applies, ie he is appealing a decision finding him fit for work so he is shielded from the 6 months’ rule.
7. He loses his tribunal in Sept 2015. The tribunal was only looking at whether he had LCW upto June 2015 and it confirmed that he didn’t. The tribunal wasn’t interested in his ESA payable from 16 July 2015 which remains in payment.
8. However, once a DM receives the tribunal decision, he quickly terminates the July ESA award by making a new decision. That decision, crucially, does not include a Reg 19 determination that a person does not have LCW. Instead, it includes a Reg147A determination treating him as not having LCW. The end result is the same, ie the person’s ESA ends but the regulation used, Reg 147A rather than Reg 19, is important for later on.
9. He makes a new claim for ESA dated Oct 2015. A new claim is an event which could trigger the anti-looping regs (see point 5 above) and this time those regs are triggered because his new claim is made after 30 March 2015. The amended Reg 30 ESA Regs, therefore, applies which, in effect, allows ESA to be paid only if:
”(b) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined—
(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work; or
(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23,
unless paragraph (4) applies [new condition/worsening etc]” (my emphasis)
Para (b)(ii) is not applicable on the facts. Our claimant will be caught by para (b)(i) if the last ESA determination preceding his Oct 2015 claim was made under Reg 19. Well, it wasn’t. It was made under Reg 147A (see point 8). Consequently, he is awarded and paid ESA from Oct 2015. Had the anti-looping regs not applied and, therefore, the old version of Reg 30 still applied, he would not have been paid on his Oct claim because Oct 2015 is within 6 months of June 2015. That’s all I was saying.
However, the above advantage is not likely to last long. But at least it’ll give us the opportunity to see just how cynical the DWP is. Because what will almost certainly happen next in this example is this:
10. The DM concludes that because there’s been no new or worsened condition since claimant’s June 2015 medical, that medical can be used again as the basis of a new WCA. The Oct 2015 award is, therefore, terminated by a new Reg 19 determination using the old medical. That new WCA decision will probably only take a couple of weeks to make, say Nov 2015. Now, how cynical would that be given that using the old medical is exactly what reps wanted DMs to do in the past in the knowledge that as soon as a new WCA was made the claimant could appeal and be shielded from the 6 months’ rule once again. But DMs would nevertheless insist on a new medical taking place which would take many months to arrange during which the claimant would be denied payment.
Continued…
[ Edited: 14 Mar 2015 at 02:06 pm by Tom H ]Continued…
11. For the sake of completeness, if our client then MR/appealed the new Nov 2015 WCA failure, the anti-looping regs would, of course, apply, because he’d now be appealing a decision in respect of a claim made in Oct 2015 which, obviously, is after 30 March. His appeal would not waive the need to make a new ESA claim as it once did (see point 6 above). That’s because the Nov 2015 WCA is not a “relevant decision” defined in the new Reg 3 C&P as follows:
”(a) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work; or
(b) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work since a previous determination by the Secretary of State or appellate authority that the claimant does have limited capability for work.
“appellate authority” means the First-tier Tribunal, the Upper Tribunal, the Court of Appeal, the Court of Session, or the Supreme Court” (my emphasis)
The Nov 2015 WCA is not the first decision containing a Reg 19 determination that he does not have LCW. There was one in June 2015 (see point 3). And the decision of the appellate authority, ie the FtT, in between those dates confirmed that the claimant did not have LCW (see point 7). So the Nov 2015 decision is not a relevant one. However, even if he makes a new ESA claim (instead of being able to rely on a waiver of claim under Reg 3), he’s not going to be paid on it. That’s because the last determination before that claim would be the Reg 19 determination dated Nov 2015. Hence, Reg 30(2)(b)(i) would apply (see point 9). The fact he was appealing the Nov decision would not shield him from the effect of para (2)(b)(i) either, as it’s necessary to be appealing a “relevant decision” in order to acquire that shield under the amended Reg 30(3). As we’ve seen the Nov decision is not a relevant decision. They couldn’t stop him making the new claim, of course, but it would be pointless in the absence of a worsened or new condition.
If you’re still confused that’s just the way it is I suppose. It’s often the expectation that the law is going to be easy that’s the problem, rather than the fact that the law is, at times, difficult.
[ Edited: 14 Mar 2015 at 02:18 pm by Tom H ]
I’d just like to check something else. If a person is caught by the regs as the claim is made after 30 March and they failed their last WCA, and the DWP do not accept it is a new or worsening condition, then ESA is not payable. If they want to persist with their ESA claim they have to manage with no money until the WCA - if they fail that then they can claim JSA during the MR and pending appeal.
But am I right in saying that they can’t claim JSA pending the WCA? Presumably if they did then the ESA claim would stop and no WCA would happen because you cannot have an open claim for both JSA and ESA.
Or would you be able to MR the original decision that you didn’t have a new or worsened condition and then could claim JSA without waiting for a WCA? But this would only be if the DWP issued a decision. In my experience they just don’t issue a decision until a WCA has been carried out (eg if you submit a claim within the 6 month period currently) which could mean a long wait before you can get any money. Or it will force people to give up on the ESA claim and claim JSA.
i welcome people’s views.
But am I right in saying that they can’t claim JSA pending the WCA? Presumably if they did then the ESA claim would stop and no WCA would happen because you cannot have an open claim for both JSA and ESA.
Agree that (i) ESA claim would stop due to receipt of JSA and that (ii) no WCA would then happen. But I think only (i) would be correct. The person would have claimed JSA because of the DM’s refusal to find a new or worsened condition under Reg 30. However, Reg 30 applies, by virtue of section 8(5) WRA 2007, to “a person in relation to whom it falls to be determined whether he has limited capability for work” (my emphasis). Whilst the refusal of entitlement to ESA (because of the award of JSA) means LCW no longer “falls to be determined”, it nevertheless fell to be determined during the life of the ESA claim whether the person had LCW. Otherwise, the DM wouldn’t have had a legal basis for considering under Reg 30 the question of worsening/new condition at all. I’m not saying the WCA should have been carried out before the decision refusing ESA was made. The JSA, after all, was a reason to refuse entitlement that was completely independent of the question of LCW. But a WCA should have been done at some point and, if after the decision, applied retrospectively.
If the above analysis is correct and there is always the right to a WCA then it would be worth appealing the ESA refusal and asking a tribunal to make the WCA that the DM was obliged to make. If the tribunal found the claimant to have LCW the JSA award could be revised in my view for official error because he would have been entitled to ESA, albeit retrospectively decided, when he claimed JSA. The Dept does not accept this, however, and would argue that the JSA decision here was correct when it was made and only shown to be wrong with the benefit of hindsight, ie the ESA tribunal’s decision, and that’s not official error. They may be right, although whilst the definition of “official error” excludes retrospective errors of law, it does not appear to exclude retrospective errors of fact . As they’re unlikely to budge, the only option would appear to be making a protective appeal against the JSA decision, having both ESA and JSA appeals heard together and asking a tribunal to lapse the JSA upon finding claimant has LCW in the ESA appeal.
Or would you be able to MR the original decision that you didn’t have a new or worsened condition and then could claim JSA without waiting for a WCA? But this would only be if the DWP issued a decision. In my experience they just don’t issue a decision until a WCA has been carried out (eg if you submit a claim within the 6 month period currently) which could mean a long wait before you can get any money. Or it will force people to give up on the ESA claim and claim JSA.
A decision probably wouldn’t be issued as any determination re new or worsened condition would arguably be just that: a determination. However, there would have to be a section 8 decision refusing entitlement to ESA on the ground that the claimant had started to receive JSA, one of the basic ESA conditions of entitlement, as we know, being that you are not entitled to JSA – section 1(3)(f) WRA 2007. It’s that decision that could be MR-d and ultimately appealed as above.
Still, it’s a very good question Daphne whether a failure to find worsening etc is itself appealable. That would be relevant where the person, for example, chose not to claim JSA pending a WCA. As we know, there’s the authority from Judge Mesher which I cannot cite at present which makes the point that a living together finding is merely one determination, a building block, of the decision and not appealable as such. And then, there’s the caselaw which holds that an outcome decision is any decision which affects the money in your pocket. I reminded myself of the relevant provisions in section 12 SSA:
”(2) In the case of a decision to which this section applies, the claimant..shall have a right to appeal to the First-tier Tribunal, but nothing in this subsection shall confer a right of appeal in relation to–
(a) ..a prescribed determination embodied in or necessary to a decision or
(b) n/a(3) Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.”
(my emphasis)
That doesn’t appear to rule out an appeal against a determination in the present context. However, we would not even have a determination as it seems a Reg 30 determination is made only when a person is treated as having LCW. We’d be asking for a determination that a person is not treated under Reg 30 as having LCW, eg because of no worsening, in order to then appeal it. I think the absence of such a determination can be overcome using the authority of the CA in Wood which held, albeit in the context of a supersession rather than a section 8 decision as here, that a refusal to make a decision was nevertheless a decision. It’s accepted that the Court was talking of decisions not determinations. And it would very much be an appeal against a determination as the ESA claim itself would still be open pending the WCA. Anyway, academic where the person claims JSA as there’d be an appealable ESA decision as above.
[ Edited: 16 Mar 2015 at 11:34 am by Tom H ]Thank you for that Tom - I’m still absorbing it…
The new ESA rules are an item on the agenda at tomorrow’s opererational stakeholders meeting so I will see what the DWP take on it is then - I suspect not as well reasoned as yours ;)
will update in due course…
Surely a determination that regulation 30 does not treat a claimant as having LCW leads to an appealable outcome decision that no ESA is payable?
Another strange consequence of the way MR has been introduced is that if an appealable decision is made, but without a decision notice that complies with D+A regulation 3ZA being issued, then the decision is not subject to MR and is immediately appealable without requesting a reconsideration.
Surely a determination that regulation 30 does not treat a claimant as having LCW leads to an appealable outcome decision that no ESA is payable?
That’s certainly what happened with Incapacity for work Reg 28, the IB equivalent of Reg 30, in cases such as R(IB)8/04 and CIB/3106/2003. The IB claimant in those cases had re-claimed IB and asked for it to commence within 6 months of a previous unsuccessful personal capability assessment (PCA). The DM had in each case not only made a determination that Reg 28 was not satisfied, ie no new/worsened condition, but had included the determination in an outcome decision refusing entitlement to IB. The fact the DMs had made section 8 SSA outcome decisions on their own initiative meant that neither the tribunal nor the social security commissioner had to consider whether it had jurisdiction to hear the appeals. That was convenient as it was held that the DMs had incorrectly interpreted Reg 28 and that the claims should never have been ended.
Para 8.2 of R(IB)8/04 confirmed that it was necessary to make a daily determination under Reg 28. The re-peat claims rule in ESA is, obviously, different to the IB 6 months’ rule but it’s safe to say that a DM will have to make at least one determination about whether he accepts worsening/new condition pending the WCA.
R(IB)8/04 as applied to ESA holds that even if it is determined that you cannot be treated as having LCW, a WCA may eventually find that you actually had LCW all along. In other words, your incapacity “falls to be determined” across the whole period of the claim. That’s what I had in mind when I referred to section 8(5) WRA 2007 in my earlier post. R(IB) 8/04 appears good authority for the proposition that there is a right to a WCA where someone leaves the ESA “journey” before being assessed, eg because they claim JSA or start work.
Daphne’s experience and I think it’s one most of us share is that, where the DM isn’t satisfied that there’s been any significant worsening or new condition, he simply doesn’t produce a decision. That’s actually consistent with R(IB)8/04, ie whilst a determination should be made re worsening etc it shouldn’t be used to end the claim. Hence, no formal decision. It also appears right because section 1(3)(a) WRA 2007 requires a DM to be satisfied, in effect, that person does not have LCW before refusing entitlement, and he wouldn’t know that for definite until the WCA was carried out.
Therefore, the question remains whether there is a freestanding right of appeal against a determination not embodied in a decision but which nevertheless affects the money in your pocket. In SK v SSWP [2009] 121, UT Judge Turnbull reserves judgment on whether the appropriate place to appeal a Reg 28 determination is, in fact, at the appeal against the PCA itself, especially if the tribunal dismisses the latter. It seems the only benefit of being able to appeal the determination is that you could get to tribunal quicker. You’d not have to wait until the WCA appeal before appealing the issue of worsening. As I mentioned earlier, section 12(2) & (3) SSA don’t appear to rule out a freestanding appeal.
In future, it’s likely that a DM will continue the current practice of keeping the ESA claim alive until a WCA. If pushed, he’d be likely to make a new WCA based upon an old medical (and why not, if he’d found no worsening?) just to dispose of the new ESA claim. The latter would, of course, be appealable. Still, no money pending it unless you claim JSA.
All of the above applies to the claimant who chooses not to claim JSA pending a WCA. If ESA ends because of JSA then I’d repeat my earlier advice: a protective JSA appeal joined with the ESA appeal.
It’s also worth bearing in mind the new extended period of sickness (EPS) in JSA from 30 March which allows a person to be treated as available for work etc and, therefore paid JSA, during a period of illness of upto 13 weeks in a single period. The DWP will be marketing the EPS as a reason not to claim ESA at all.
[ Edited: 17 Mar 2015 at 09:15 am by Tom H ]The new ESA rules are an item on the agenda at tomorrow’s opererational stakeholders meeting so I will see what the DWP take on it is then - I suspect not as well reasoned as yours ;)
will update in due course…
Hi Daphne,
I’m looking forward to hearing how you get on. I have a client whose LCW decision was on 29/9/2014. He did req a MR, but did not appeal the outcome of that in time. We have done a late appeal this week, but technically he can claim when 6 months is up too, on the same medical condition. This is Sunday 29th March, the day before the new rules for repeat claims.
Any ideas what would happen here? Can he claim on a Sunday? Can he claim on 30th March asking for a 1 day backdate? Thanks,
Sangeeta
Hot from the lunchbreak at the operational stakeholders - this is the DWP view -
A person claims ESA who has a previous WCA decision and the latest one is a finding that the claimant does not have LCW (Following WCA - not failure to return esa50 or failure to attend). The script in the initial claim will flag up that they need to show new or worsening condition - an esa83 will be issued asking them for info to demonstrate this. The DWP claim it does not have to be medical evidence - the claimant can just describe it themselves.
Following is there are three outcomes -
1) the DM decides there is no change of condition, the previous WCA applies and esa refused - cl can challenge thru MR and appeal.
2) the DM accepts there is worsening condition and allows the claimant to be treated as LCW on the submission of med certs and assessment phase esa paid.
3) and this is the messy one - the DM decides more info is needed before a decision is made and refers for a WCA - there is no decision and therefore no MR/appeal rights yet. A letter, esa82, sent out advising claimant of this.
We questioned further on what happens in option 3. The DWP say the claimant can claim JSA and still be put forward for the WCA so that a decision is issued on the ESA claim - they are going to provide the legislative basis for this - it will be interesting to see what they come up with.
We asked if advice relating to this would be included in the esa82 and also confirmation that any JSA claim would not prejudice the decision on the WCA - they are going to look into this and provide a copy of what the esa82 looks like. If anyone gets one via a client sooner I would be very interested to see it.
I suspect there are going to be problems in practice - please do give examples that I can pass back…
@Daphne. That is very interesting. Please feed back whatever you get to support the right to a WCA while claiming JSA.
Thanks for that Daphne- very helpful indeed.
What happens to current ESA Mandatory recon claimants if the reconsideration decision is made after 30 March and doesn’t revise the decision ? Is the claimant under the new regs or the old ones ie can they get ESA whilst their appeal is pending?
So long as it’s the first determination finding them not to have LCW then ESA should be paid once the appeal is lodged. If it’s a repeat claim after a LCW determiantion it cannot.
I haven’t yet had my cup of tea and biscuit and set aside lots of time for looking at this, as suggested by LJF, so please forgive me, but in the light of this discussion I just need some immediate practical advice.
Client refused ESA in decision of 16/09/14, lost tribunal last Thursday 19/03/15.
Tactics question: we need to do another ESA claim before the end of the week - however, his ESA is still in payment. What’s the best way of getting the DWP to accept his new ESA claim? Does he need to actively withdraw his live one? What would you expect if you were to ring the phone line - would we just have to argue the toss with them on the new claims line, or would you suggest a paper form handed into the JCP and receipted?