Benefits pending WCA

Hi,

Just wanted to see if anybody has any suggestions.

Client was in receipt of ESA at the assessment rate. Attended a medical assessment in January and found to be fit for work. Instead of challenging that decision, she tells me that she made a new claim for ESA, she has completed an ESA50 and is now awaiting a WCA, however no payments are being made at this time (as per old rules of claiming again within 6 months on existing health conditions).

As we all know, waiting times for WCA’s are long, and the client has fallen in to financial difficulty. Is there anything that she can claim to give her an income? JSA isn’t an option because she meets the criteria for UC and so we cant go down that route.

She is relying on a friend for financial support.

Any suggestions?

How about requesting a late MR of the Jan decision? If successful ESA should be reinstated from date it stopped and if not, and she appeals, ESA can be paid whilst appeal ongoing. Got to be a quicker route to her being paid than waiting for a further WCA to be arranged.

It is an option, but it depends on whether the DWP will accept the MR 2 months late. It had crossed my mind as an option, and at least that way she would go on to JSA pending the outcome of the review and then ESA if an appeal is lodged.

Even if you don’t/can’t do the MR she can’t go on to UC as one of the gateway conditions is that you can’t be waiting a decision on ESA - see Schedule 5 under para 16 here http://www.legislation.gov.uk/uksi/2014/1452/made - so she should be able to claim JSA pending the decision on her new ESA claim.

So far at least we’ve not had a late MR rejected (or not by DWP anyway. TCO refused to accept a late one but those wonderful chaps from CPAG- bless them- assisted us with threatening JR proceedings and TCO caved in). I’ve bunged in a few that have been 6 months or more after the decision date.

But as Daphne says, client shouldn’t satisfy the UC gateway conditions anyway.

Daphne - 15 May 2015 08:48 AM

Even if you don’t/can’t do the MR she can’t go on to UC as one of the gateway conditions is that you can’t be waiting a decision on ESA - see Schedule 5 under para 16 here http://www.legislation.gov.uk/uksi/2014/1452/made - so she should be able to claim JSA pending the decision on her new ESA claim.

Thanks Daphne. Since ESA and JSA run on the same system, would making a claim for JSA now, without the MR, mean her claim for ESA had to be closed? Would that then stop the process of a WCA being arranged?

We have had long discussions about this. You cannot be entitled to JSA at the same time as you are entitled to ESA or if you have limited capability for work. But because no decision on entitlement has been made for the ESA or whether she has LCW then she is not precluded from claiming JSA and the ESA claim does not need to be closed. And DWP have confirmed to us at operational stakeholders that this is the case.

Paragraph 18(3) of DMG 10/15 seems to acknowledge that JSA can be paid while awaiting determination of a repeat claim for ESA - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419045/m-10-15.pdf

So hopefully your client is OK :)