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esa after 30th march.
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!
Was the decision of May 15 ever challenged? If not it is not to late to make a late application for a MR. If yes what stage has that challenge reached?
I assume the decision on the new claim has already been through MR and is now at the appeal stage. Did the grounds for appeal refer to the previous award at SG? When you receive the DWP submission ( and it might be worth taking action in advance) if it does not include a copy of the previous SG award (inc. any previous routine re-assessment decisions) including a copy of the relevant ESA50and ESA85/85A make an application to HMCTS for a judge to direct DWP to provide them (and any other evidence used to make the SG award - such as an ESA113 or med. ev. Provided by your client - this might avoid a tribunal adjourning for DWP to supply it. It might also be useful to known for how long the client was in the SG (and any award of IB/IS before that if applicable!).
Assuming the award of SG was not excessively generous (or client had a period of significant remission) I would assume it will not be difficult to show (1) there are grounds for a (late) MR against the May 15 ‘found fit’ decision and (2) the refusal of the new claim under Reg 30. In an ideal world getting (1) before a tribunal before (2) would be an advantage - it is just possible a tribunal hearing (2) would adjourn and direct it be heard with an appeal against (1) once made because if they allow (1) then (2) becomes irrelevant.
Also I ( and a tribunal?) would assume that in practice there was no deterioration in clients condition between May decision and new claim - the real issue is that the May decision was wrong and arguing ‘deterioration’ is just a way of trying to get a new claim allowed under Reg 30 because the original decision has not (yet) been challenged! I have seen DWP and tribunals get their ‘underwear in a twist’ in this scenario which Reg 30 now creates and the need to ‘play with words’ in order to (a) get the client some benefit now and (b) get the real issue (the ‘found fit’ decision) challenged.
Remember it’s all about ‘simplification’!
I’m with Peter. If a late MR request against the original decision is accepted client will also have a route to payment of ESA whilst appeal is ongoing (on presumption decision is unchanged). And if you do have to appeal against that decision you can ask for both the appeals to be heard together.
Simplification indeed….
Hi all - thank you for your responses :)
I was planning to give the late MR request of the May decision a go but am worried whether client has a good argument for this after c. 6 months - in this context does the general principle of ignorance of the law not being a defence still hold?
Have just checked our HB records and client appears to have been in SG since August 2012 and was in WRAG before this from March 2011 - I’m not sure how many reassessments she has had placing her in the SG before the May decision finding her fit for work. The previous SG assessments were not mentioned in the appeal reasons (and the MR decision does not mention why they were departed from). Similarly no reference is made to the DLA award (not even the typical response saying that they are different benefits with different criteria)
Client does actually seem to have genuine Reg 30. argument - due to her own health issues, family circs, losing her benefit etc her mental health has significantly deteriorated and she is now on anti-depressants which was not the case previously. This was confirmed in GP evidence provided with the MR request but not discussed in the reconsideration. Client has degenerative spinal condition and whilst she hasn’t provided medical evidence directly to the fact I would be pretty confident that she has got worse since May last year.
Reading the MR decision carefully the structure appears (in brief) to be an initial decision that the Reg. 30 requirements are not met and then a further decision relying on the previous WCA making a fresh decision that the client does not have LCW. So following that structure a tribunal in the DMs shoes could I guess agree that the Reg 30 requirements were not met but then remake the LCW decision. In fact this would seem to be a better result than the tribunal saying that Reg 30 should have applied, client should have been paid assessment phase ESA from start of claim and returning the client to the DWP for a new WCA to be arranged?
Will follow the advice here and a) put in a late MR request of the May decision and b) treat the more recent decision as a normal WCA appeal and not get too hung up on Reg 30 - tribunals are being listed super quick in London at the moment and so client should not have to wait long.
Thanks all again for advice!
At local DWP stakeholder meeting today we were advised by staff from St Austell BC (the processing centre for most of our area) that claimants on JSA who are ‘caught’ by Reg 30 but have a ‘significant worsening’ can make a ‘shadow’ clerical claim for ESA to initiate the WCA process whilst retaining JSA to ensure an income pending a WCA outcome decision. Apparently they deal with lots of shadow clerical ESA claims.
However they were unable to give any clear info. about how a claimant / adviser can initiate this process. Is it via the ESA telephone claim line, the contact centre, local Jobcentre or some other?
We have requested that DWP provide written info. on the process to be followed.
Has any reader had experience of this ‘shadow’ cleriacl claim process. How did it work for your client?
Has there been any response via national stakeholder forum yet with a definitive answer on this question?
I’m sorry Peter there isn’t - it’s not for lack of trying. I resent my query in a couple of weeks ago (not for the first time) and they came back with a reply which didn’t address the issue at all so I have sent it back again. Queries do tend to fall in to a bit of a black hole sometimes - I will keep chasing…
At local DWP stakeholder meeting today we were advised by staff from St Austell BC (the processing centre for most of our area) that claimants on JSA who are ‘caught’ by Reg 30 but have a ‘significant worsening’ can make a ‘shadow’ clerical claim for ESA to initiate the WCA process whilst retaining JSA to ensure an income pending a WCA outcome decision. Apparently they deal with lots of shadow clerical ESA claims.
However they were unable to give any clear info. about how a claimant / adviser can initiate this process. Is it via the ESA telephone claim line, the contact centre, local Jobcentre or some other?
We have requested that DWP provide written info. on the process to be followed.
Has any reader had experience of this ‘shadow’ cleriacl claim process. How did it work for your client?
Has there been any response via national stakeholder forum yet with a definitive answer on this question?
I shall be very interested to see how this pans out. We’ve certainly not been informed that it’s possible to make a ‘shadow’ claim- indeed, quite the opposite (that ESA claim can’t be dealt with at all until JSA claim is closed). My only experience of clerical ESA claims is where there is difficulty in rebuilding a claim following a long gap.
At local DWP stakeholder meeting today we were advised by staff from St Austell BC (the processing centre for most of our area) that claimants on JSA who are ‘caught’ by Reg 30 but have a ‘significant worsening’ can make a ‘shadow’ clerical claim for ESA to initiate the WCA process whilst retaining JSA to ensure an income pending a WCA outcome decision. Apparently they deal with lots of shadow clerical ESA claims.
However they were unable to give any clear info. about how a claimant / adviser can initiate this process. Is it via the ESA telephone claim line, the contact centre, local Jobcentre or some other?
We have requested that DWP provide written info. on the process to be followed.
Has any reader had experience of this ‘shadow’ cleriacl claim process. How did it work for your client?
Has there been any response via national stakeholder forum yet with a definitive answer on this question?
I shall be very interested to see how this pans out. We’ve certainly not been informed that it’s possible to make a ‘shadow’ claim- indeed, quite the opposite (that ESA claim can’t be dealt with at all until JSA claim is closed). My only experience of clerical ESA claims is where there is difficulty in rebuilding a claim following a long gap.
This is our experience too. The only way appears to be to end the JSA claim and claim ESA (with no money until the WCA process is complete). DWP agree that the system cannot hold two live claims but are insistent that there is this shadow process that enables a referral for a WCA!
Has it ever been explicitly stated by DWP that it should be impossible for a client to reapply for ESA after a negative WCA? I have a client who lost at her ESA Tribunal and is now being told by the ESA claim line that she should not reapply AT ALL (unless changed/worsened condition etc) as they will simply go with the previous WCA decision.
If that is correct (and bearing in mind the responses above it is clearly a bit more complicated) then would DWP expect an amount of time to pass before deciding that a previous WCA is no longer relevant and they should refer for a fresh WCA - ie an unofficial “6 month or other appropriate time period” rule?
So far have been doing battle on the worse/different angle but if someone is genuinely just the same then it will be interesting to know at what point they are allowed to be referred for another WCA…
Don’t think DWP have thought through the process clearly… as usual.
Has it ever been explicitly stated by DWP that it should be impossible for a client to reapply for ESA after a negative WCA? I have a client who lost at her ESA Tribunal and is now being told by the ESA claim line that she should not reapply AT ALL (unless changed/worsened condition etc) as they will simply go with the previous WCA decision.
If that is correct (and bearing in mind the responses above it is clearly a bit more complicated) then would DWP expect an amount of time to pass before deciding that a previous WCA is no longer relevant and they should refer for a fresh WCA - ie an unofficial “6 month or other appropriate time period” rule?
So far have been doing battle on the worse/different angle but if someone is genuinely just the same then it will be interesting to know at what point they are allowed to be referred for another WCA…
Don’t think DWP have thought through the process clearly… as usual.
The DWP position is that a new assessment is arranged if there is either a new medical condition or there has been a signficant worsening (worsening such that the WCA is now satisfied). If it is determined that there is no such worsening, the DWP stance is that the most recent ESA85 is adequate. I can see the logic - if the health condition is essentially the same and the legal test hasn’t changed, there is no need to reassess someone.
Bear in mind that despite DWP using the old ESA85, it is still determining LCW on the date of the decision - but the new (refusal) decision on the repeat claim will now embody two determinations: first, that the claimant cannot be treated as LCW pending a WCA; and second, that the claimant does not have LCW. Therefore, even if you cannot argue significant worsening or a new medical condition, you can still argue LCW/LCWRA as usual.
Other than that, I should think DWP would continue to use the most recent ESA85 until it routinely deletes its records. The ESA repeat claim appeals I’ve come across so far also do not contain an ESA50, so that seems to go first…
They definitely dig their heels in.
I assisted a client with a progressive condition recently who failed the WCA in 2011. She had then claimed JSA but marked deterioration in her health resulted in her reclaiming ESA on advice of local JC. We had a right old battle as DWP simply rejected the claim on basis there was no evidence of significant deterioration- no referral to medical services and in the face of very clear evidence from her GP and consultant that things were indeed substantially worse than they had been in 2011. Decision was eventually overturned on MR but it dragged on for ages.
Aye, I am seeing similar idiocy.
Currently have a client who is ‘treated as’ having no LCFW due to failure to attend assessment (decision now appealed*) who was advised to make a new claim. DWP have used the post 30th March amendments to refuse this new claim on the basis that “following a recent medical assessment it has been determined that you are fit for work” when, of course, there was no such assessment…..
* the Department’s response to the appeal is also something of a joy. Having pointed out in the the appeal that the recitation of the client’s history of having rearranged a couple of previous medicals and of failed to attend a couple is irrelevant (as, at the time, she would not have been permitted to rearrange and the claim would not have continued in payment following the failures had ‘good cause’ not been accepted) - the Department has persisted with this line of argument in the response. In summary, the argument runs that this past history ‘shows, on the balance of probabilities, that Ms X would be unlikely to attend any rearranged assessment in the future.”
Nothing about whether there was good cause for this particular failure…..
Further idiocy. Client fails a WCA. Doesn’t appeal that decision but re-claims ESA a few months later asserting a new condition. DWP don’t accept the condition is new and instead carry out a new WCA based on the previous ESA85. Fair enough. We appeal that decision. Whilst waiting for that appeal client claims JSA. After signing on a couple of times, he acts on my advice and requests an extended period of sickness (EPS) in his JSA. Jobcentre’s response: Sorry, you cannot have an EPS because you do not have a new medical condition. I give up.
I give up.
Tom, your surely not suggesting that’s the underlying purpose of the amendment?
I give up.
Tom, your surely not suggesting that’s the underlying purpose of the amendment?
LoL.
I know there’s a lot of decent people in the DWP but whenever I come across a decision like my client’s above JSA one I always think of this scene from the great Chris Morris’ series Jam.
After almost 18 months with regular chasing I have finally had a reply from operational stakeholders to my query about what should happen when someone tries to claim JSA pending a WCA following a repeat ESA claim - situation 3 in my post earlier in this thread - http://www.rightsnet.org.uk/forums/viewthread/7894/P15/#35120. The reply is -
If the claimant cannot be paid pending a further WCA and opts to claim JSA pending resolution the ESA claim is clerical and the WCA will still progress until an outcome is decided and then the claim will either become an ESA claim or remain JSA. They must supply medical evidence (SOFFW) for the period pending the WCA outcome
If they are on JSA there is the extended period of sickness for 13 weeks if they are still ill after that and they wish to claim ESA then they cannot remain on JSA while the ESA claim is decided. They will have to await the WCA outcome.
All this is predicated on the fact they have returned with the same incapacity from which they were found no LCW and that condition has not deteriorated.
I would be interested to know -
1) whether this is what is happening in practice
2) if it is - is the WCA being carried out within the 13 weeks EPS or is the client ending up with nothing
3) whether people think this is a correct interpretation of what should happen - the DWP provided no legislative basis for their response despite me requesting it several times - if they’re right then, if the WCA isn’t carried out within 13 weeks then a claimant either goes without or is forced to relinquish the ESA claim.
I am still getting my head round it myself - welcome any thoughts…