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

esa after 30th march.

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Dan_Manville
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Sophia2013 - 07 April 2015 04:19 PM

Thanks Dan, I was under the impression that as long as you have a new or worsenning condition you can reapply with medical evidence

Probably easier to show a new condition rather than to try to argue substantial deterioration; I have struggled going down the latter route in times past; they ask for a lot of evidence of the deterioration.

SamW
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A slight variation on a theme here…

Client claimed ESA and in October 2012 was found not to have LCW. She appealed and eventually in January 2014 her appeal was heard and was refused.

I first meet with client in March 2014. We request set aside of the tribunal decision on the original claim and make a new claim for ESA. The set aside request was granted and client’s appeal was reheard last week on April 1st 2015. Yet again her appeal was unsuccessful.

There has yet to be a WCA carried out on her new claim.

My understanding is that as her new claim was made before 30th March 2015 it can continue at assessment rate and that if the WCA is failed client could re-appeal (having gone through MR) and be paid appeal rate ESA. If this appeal fails (again!) she will not be able to claim ESA unless and until she can demonstrate a deterioration or a new condition.  Is this correct?

Thanks!

Daphne
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That’s how I see it Sam

S2uABZ
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I foresee these decisions are going to play a big part in our future work, has anyone put together guidance or training notes on this issue yet?

Peter Turville
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Having had a discussion in the office today about dealing with this issue in practice a few practical questions arise:

How will DWP manage repeat claims for ESA from claimants who are currently receiving JSA? Our understanding is that the IT system cannot hold two live claims (1 x JSA & 1 x ESA) at the same time.

So, for example, a claimant who has previously been found fit for work and is now receiving JSA may have a deterioration in their condition (for example, because they have a fluctuating condition or a relapse) and want or been advised (by JCP/provider - you know the sketch!) to claim ESA instead.

Will the ESA new claim line ‘accept’ a new claim for ESA when the IT system will show a current JSA award in payment? Will they be told ‘you can’t claim ESA unless you close your JSA claim’. How will DWP ‘build’ a new ESA claim to allow the question of deterioration, including referral for a WCA, to be addressed whilst their is a live JSA claim? Has the IT system been amended to cater for this situation or will the new ESA claim have to be administered ‘clerically’.

Will it be administered throught the JSA ‘extended period of sickness (13 wk) provisions and , if so, how will JCP identify it as an ESA Reg 30 / ‘detrioration’ claim/issue?

DMG Memo 10/15 does not give any indication of how DWP will administer such cases in practice.

There are likely to be a significant number of JSA claimants who have previously been ‘found fit’ who might want / need to claim ESA again. In some cases it could be a significant time (years) since the previous found fit decision. The claimant may have subsequently been in work for a long period, on & off JSA etc. Will DWP system be able to identify (at an early stage) cases where the previous decision was years ago?

How difficult will it be for advisers to establish if a claimant has previously had a ‘found fit’ decision. It may now need to be one of the first questions we ask a client seeking advice about a new claim for ESA -‘have you previously had an ESA decision that you were ‘fit for work’?

And then consider clients who have difficulty giving an account of previous claims / decisions. Establishing whether those decision were actaully ‘found fit’ or, for example failure to return ESA50 of attend a WCA etc etc!

‘Simplification’, it all makes work .........

Daphne
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This is something we’re pending clarification from by operational stakeholders - we have a meeting in a couple of weeks so I will send a reminder.

I think there is a problem because s1(2) of the Welfare Reform Act 2007 says you can’t be entitled to ESA if you are entitled to JSA.

I think you could possibly argue that putting in a claim for ESA doesn’t mean you are entitled and if they decide the claim in your favour then you will be entitled to ESA and at that point you would cease to be entitled to JSA. But i foresee problems. I will send an email now with a hope of getting something more concrete back from them at the meeting

acg
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Simon Osbourne’s CPAG article disagrees that the 6 month rule will not apply where persons are treated as having LCW having failed to return the ESA50 or failed to attend the WCA.I asked Simon for his comments which I have pasted below and would be interested in other people,s views on this.

I think the new rules apply to both to situations where the WCA has been actually been failed and where the claimant has been treated as failing the WCA because of failure to return the questionnaire or attend the medical. See the new version of regulation 30(2)(b), which is in two parts but still covers the latter two situations by virtue of the new (b)(ii):

‘(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)…
(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…’

(My emphasis added).

However, unlike the new (i) where the WCA has actually been failed, the new (ii) does retain the caveat that the finding is ‘within the 6 months preceding the date of claim’. Hence the article does say, correctly I think, that the six-month rule continues to apply in such situations (i.e. in the absence of anything else the claimant can at least reclaim and be paid again after six months

Andrew Dutton
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I’m still confused -

Original ESA, disallowed on 11 December 2014, following WCA

MR requested; decision not changed; appealed; ESA paid pending appeal

Appeal heard on July 2015; and the original decision was upheld. ESA disallowed from 21 July 2015.

Repeat claim made July – based on worsening.

DM decides claimant would not score 15 points on WCA and there had not been significant worsening.

DWP hold that the last determination preceding the claim dated 21 July 2015, was made on 11 December 2014 and so the new version of Regulation 30(2)(b)(i) did apply.

Can I argue as per Tom H’s example above that the last determination was that of the FtT ?

Daphne
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I don’t think it matters does it Andrew? If the new claim was made after 30 march then the new rules apply. And if the previous WCA was failed - whenever it was - then no ESA unless can show new or worsened condition. Or am I missing something?

Tom H
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Andrew

I think you’re referring to point 9 of post 17 above where I commented that the “last determination” in the present circs is not one finding that s/he does not have LCW but rather one treating her/him as not having it.  There is a difference.  In fact, back in June 2010 when Reg 147A ESA Regs was introduced the DWP emphasised in DMG that the two types of determination were very different.  Only a previous determination that you do not have LCW could trigger the then 6 months’ rule under Reg 30.  And that doesn’t seem to have changed under the new Reg 30.

As it stands, a new claim by your client would escape the repeat claim rule in Reg 30(2)(b)(i) as the “last determination” in your client’s case was one made under Reg 147A(5) not, as you state, by the tribunal but by the DM when s/he received the tribunal’s decision.  Your client should, therefore, be treated as having LCW under Reg 30 until a new WCA is carried out.  However, as soon as you point this out there’s a good chance a DM will immediately carry out the new WCA concerned, relying on the evidence used to fail the client last time, ie in Dec 2014 (see point 10 of post 17).

I posted post 17 before DMG 10/15 was published (Brian links to that DMG in post 41 above).  DMG 10/15 advises that Reg 30 does not apply at all where a DM can determine LCW immediately re the new claim – see its paras 8, 9 & 12.  In other words, the DM won’t even consider significant worsening etc if s/he feels they can make a new WCA on the existing evidence.  That said, para 20.3 of the same DMG does advise that one of the factors that may make it inappropriate to decide LCW immediately is where the claimant asserts worsening since the last WCA.  Consequently, whilst a DM might not consider any worsening asserted by the claimant to be sufficient to trigger Reg 30(4), ie significant worsening, s/he might nevertheless consider that the mere assertion of worsening makes it unsafe to decide LCW immediately.  If that happens here, then your client should be treated as having LCW under Reg 30 until the new WCA is carried out.

For what it’s worth, I think the DMG is wrong to suggest that Reg 30 does not apply where LCW can be determined immediately.  That’s because unless the WCA is carried out on the same day as the date of claim there will always be a period where a person might be treated as having LCW.  And even where the WCA is done on same day as the date of claim, there would similarly be a gap if backdating was requested in the claim.  Consequently, I think it will almost always be necessary to consider whether a claimant can be treated as having LCW under Reg 30.

Finally, even if your client is failed again immediately under a new WCA, it’s not certain that s/he wouldn’t be entitled to ESA pending an appeal against that new failure.  It seems it’s just been accepted to date that the new Reg 30 is retrospective so that, eg, if a claimant fails the WCA in Dec 2014 and fails it again in Aug 2015, the latter cannot be a “relevant decision” for the purpose of being paid ESA pending appeal.  The SI which amended Reg 30 applies, as we know, to any new claim made on or after 30 March or to any appeal against a decision made in respect of such a claim.  That’s all well and good.  However, there is a legal presumption against retrospectivity which can, admittedly, be rebutted where the legislation is clear.  The question here is whether the new Reg 30 makes it clear that the “last determination” found in para (2)(b)(i) can include a determination pre-dating 30/3/15.  I’m not sure it is sufficiently clear.  Imagine if your client in Dec 2014 had decided against appealing his failed WCA having taken advice that he could re-apply in June 2015 and be paid ESA again, ie just over 6 months’ later.  That would turn out not to be correct if the new Reg 30 is retrospective.  That would potentially be some penalty he’d have to pay for acting on what was then the correct understanding of the law.  For that reason, judges have been reluctant to find that the presumption against retrospectivity is rebutted unless the legislation is very clear to that effect.

Reg 30(5) provides:

” (5) In this regulation a “relevant decision” means–

(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.”

Equally, can we presume that references above to the “first determination” must, in the absence of express provision to the contrary, be only to those determinations made after 30 March 2015?

Edit: I suppose, on reflection, it is implicit in Reg 30(2)(b)(i) that “last determination” can include one made before 30 March given that the precise wording is “last determination preceding the date of claim”.  The new Reg 30 could conceivably apply to a claim made on 30 March and so in order to be “preceding” that claim the “last determination” would obviously have to be before 30 March.  However, I don’t think the same can be said for “relevant decision” which is the mechanism for restricting ESA pending appeal.  As we know, new Reg 30 was intended to address two separate issues: ESA re-claims and awards of ESA pending appeal.  The presumption against retrospectivity appears to be rebutted re the former only. 

 

[ Edited: 22 Aug 2015 at 12:38 am by Tom H ]
Peter Turville
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Daphne - 01 May 2015 02:54 PM

This is something we’re pending clarification from by operational stakeholders - we have a meeting in a couple of weeks so I will send a reminder.

I think there is a problem because s1(2) of the Welfare Reform Act 2007 says you can’t be entitled to ESA if you are entitled to JSA.

I think you could possibly argue that putting in a claim for ESA doesn’t mean you are entitled and if they decide the claim in your favour then you will be entitled to ESA and at that point you would cease to be entitled to JSA. But i foresee problems. I will send an email now with a hope of getting something more concrete back from them at the meeting

Daphne - has there been a response from DWP yet?

We have still not received a satisfactory response via local stakeholder partnership managers. As far as we can see, having introduced the amended Reg 30, DWP have no procedure by which a claimant can raise significant worsening or new condition while claiming JSA without withdrawing the claim, claiming ESA and waiting (maybe many for months without income) while DM decides (possibly only after referring for another WCA).

Daphne
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No there hasn’t Peter. Thanks for reminding me - I will chase it up.

SamW
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Hello people of Rightsnet,

I currently have a client in this situation. She was in the support group but a rogue ATOS assessor somehow found her fit for work in May 2015. Client not supported at that point and unaware of her appeal rights - she thought she had to claim JSA but was only able to manage this until August 2015 when it became impossible and the claim was shut down.

Client made a new claim for ESA supported by evidence from both her GP and her support worker confirming that her health had deteriorated but the DWP have just paid lip service to this (decision states that they have paid ‘careful attention’ to the evidence but then simply follows the previous medical assessment with no further explanation).

Client still has no JCP income and is living on her DLA (MRC/HRM).

State of play prior to me becoming involved is that client has sent in an appeal form against the recent decision refusing her ESA reclaim, largely concentrating on why she should have been found to have LCW but with a clear enough statement that her health has deteriorated since the last assessment.

I am wondering how to proceed with this and the main consideration for me is what scope a tribunal will have in terms of decision making. Will it be within their remit to find that the client has LCW (or even hopefully LCWRA)? Or will they only be able to find that there was sufficient evidence of deterioration in her condition so that she should have been referred for a further Work Capability Assessment?

If it is the latter I think it is clear enough that the DM has ignored the DWPs own guidance on accepting the client’s evidence if not improbable/contradictory so that I can get the case back on track to having a fresh WCA (with the client being able to claim assessment rate in the meantime) through our escalation contacts without needing a tribunal.

If the tribunal is able to make a determination on client’s LCW/LCWRA then I will aim to have things resolved there in order to avoid the client having to go to another assessment.

Any thoughts welcome!

ROBBO
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I was at an appeal yesterday which I had expected to be about whether a new claim should have been accepted, but the Judge had no problem making a WCA decision determining LCW.

Tom H
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DWP Guidance, rightly or wrongly, advises that worsening etc should be considered only where it’s not possible to determine LCW re the new claim immediately.  What seems to have happened here is that the DWP have followed that guidance and found, using the previous unsuccessful medical, that the claimant still does not have LCW.  The DMG, however, also advises that it might not be appropriate to determine LCW immediately in this way where the claimant has asserted a change of circs since the previous WCA, here the May 2015 WCA.  All a bit catch 22-ish then. 

The upshot is that the decision re the new claim appears to be a normal WCA decision, albeit using the same medical as before.  Same thing appears to have happened in Robbo’s case.  If that were not the case, the tribunal would arguably have lacked jurisdiction as what you’d otherwise have is a Reg 30 determination refusing to treat the person as having LCW and there is arguably no right to appeal against a determination unless it’s embodied in an outcome decision. 

The claimant will not be paid ESA pending the present appeal as the WCA under appeal is not a “relevant” decision, ie there was an earlier unsuccessful WCA in May 2015 so the WCA under appeal is not the first such failure.

One option is to late appeal against the May WCA.  If that appeal is admitted, claimant could be paid ESA pending that appeal given that the May decision would have been in respect of ESA that was claimed before 30 March.  Consequently, the new regs would not apply and ESA pending appeal could be awarded.  You could ask for such ESA to be backdated to, say, Aug 2015 or even May (albeit with an offset of the JSA received between May and August).  There could then be a problem in that any ESA pending appeal awarded would run in to the back of the latest failed WCA, making it a fixed period award.  You’d need to cross that hurdle if you came to it.  There’s a couple of reasons in my view why it would be wrong to restrict the ESA pending appeal in that way.

So the appeal you have made at present appears to be an ordinary WCA appeal.