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New Reg 30 and how it works
I’ve looked at previous threads on this, plus CPAG’s article, but i’d appreciate views on this:
Claimant made a repeat ESA claim on 18 May 2015
Last assessment 2013
ESA83 completed by phone which was then passed to a decision maker.
No new conditions declared.
I am told that under the new Reg 30, the DM must be clear that a person ‘would score 15 points should they attend a Work Capability Assessment now’. The DM used the HCP report from 2013.
Claimant was ‘advised his ESA claim would not succeed.’ Not clear if there was written decision.
Claimant now on JSA - as he had no money. Claimant Commitment is purely standard, no mention of disabilities.
So – is he to get no decision on his ESA claim, no fresh WCA? By my reading of it he may not be entitled to payment of ESA until a new WCA, but he should not be stopped from having the WCA.
If a claim is made, a decision must be made. The new reg.30 simply precludes payment until the new WCA, it doesn’t prevent a claim being accepted or adjudicated upon.
Thanks Paul - that’s how I read it. DWP message implied that all had stopped after an ‘assurance call’. I’m not happy.
I am told that under the new Reg 30, the DM must be clear that a person ‘would score 15 points should they attend a Work Capability Assessment now’. The DM used the HCP report from 2013.
Claimant was ‘advised his ESA claim would not succeed.’ Not clear if there was written decision.
I think the above is referring to the test the DWP are using to decide whether there has been any significant worsening. It looks like the DM has compared the client’s current functional impairment with that in the 2013 WCA and concluded there’s no worsening. Hence no decision on the new ESA claim as all the DM has decided to date is that the claimant cannot be treated as having LCW under Reg30 pending a new WCA. And that’s a determination rather than an outcome decision.
Then client claims JSA. The ESA claim has to end - section 1(3)(f) WRA 2007. The ending of the ESA is an outcome decision of which client should receive written notification. The current grey area is whether it’s necessary for the client to appeal the latter or whether there is a right to a WCA for the period when the ESA claim was live, ie, from the ESA start date to the day immediately before the JSA started. All we have from the DWP to date is a verbal assurance given to DWP stakeholders which Daphne has mentioned in the other threads you’ve no doubt read, together with an inference that can reasonably be drawn from a couple of paras of the latest DMG on repeat ESA claims. I’ll use those two items rather than law if it comes to trying to persuade a DM to carry out a new WCA in the above circs. After all, the DMG etc is the “first language” of the DM so there’s no need complicating things using the law. But before a tribunal I’d be arguing that R(IB) 8/04 is authority for the proposition that there is a right to a WCA. I don’t trust DM’s to follow even clear DMG so until DWP policy becomes clear on this I’d perhaps be tempted to make a protective appeal of the above ESA outcome decision, ie the one that should be received when JSA starts.
I think you’re incorrect Tom. I don’‘t have the time to post a long-winded reply but even if you simply look at the notes under the SI 105 No 437, you see the following (my emphasis):
First, it extends the period which prevents a claimant who is making a new claim for ESA from being treated as having limited capability for work pending a work capability assessment where their last work capability assessment outcome (if indeed there was one) was that they did not have limited capability for work (they have been found fit for work).
A new claim requires a new decision, it’s as simple as that. Whether separately DWP look at whether significant worsening has occurred is another matter but the new ESA claim requires a new decision, whatever that may be.
A new claim requires a new decision, it’s as simple as that.
Yes, and a new decision is made refusing ESA when the claimant is entitled to JSA. See post 10 here
A new claim requires a new decision, it’s as simple as that.
Yes, and a new decision is made refusing ESA when the claimant is entitled to JSA. See post 10 here
I don’t disagree with you on that strand, I’m simply of the opinion that DWP had a duty to make a decision on the initial 2015 ESA claim - presumably there’s evidence that they spoke to him, and that as a result of that conversation, he misguidedly made a JSA claim which could indeed preclude entitlement (although DWP say not in such circumstances).
I’d be pushing for a decision on the 2015 ESA claim as made, not as a result of any subsequent JSA claim. Otherwise, we’re opening up the possibility of gatekeeping by default, as we’ve seen with crisis loans, hardship payments etc.
A new claim requires a new decision, it’s as simple as that.
Yes, and a new decision is made refusing ESA when the claimant is entitled to JSA. See post 10 here
I don’t disagree with you on that strand, I’m simply of the opinion that DWP had a duty to make a decision on the initial 2015 ESA claim - presumably there’s evidence that they spoke to him, and that as a result of that conversation, he misguidedly made a JSA claim which could indeed preclude entitlement (although DWP say not in such circumstances).
I’d be pushing for a decision on the 2015 ESA claim as made, not as a result of any subsequent JSA claim. Otherwise, we’re opening up the possibility of gatekeeping by default, as we’ve seen with crisis loans, hardship payments etc.
Paul, you’ve confused me. I’m not saying anything different in this thread to what I said in the other one. I’m saying there should be a new ESA decision that embodies the new WCA irrespective of the subsequent JSA. I think the same would be true were someone to subsequently start work, rather than subsequently be awarded JSA, before the new WCA was carried out. There is a right to a WCA in other words. I think the decision here refusing ESA on the grounds that he receives JSA should be revised once the result of the WCA is known. That revision would carry MR and ultimately appeal rights.
Edit: I don’t think they had to make a new WCA immediately. After finding no significant worsening, they should have arranged a new WCA which they appear to have done. But he had no money so had to claim JSA. The issue is whether the new assessment is still done. That is certainly not legally clear. R(IB)8/04 is the best authority I could find, although it still seems good for ESA. The DMG and DWP verbal assurance is going to be important, therefore.
[ Edited: 8 Jul 2015 at 01:44 pm by Tom H ]Sorry Tom, I think I speed read your first post and missed the last bit, where you did say about insisting on the WCA and a decision. Been a bit busy with the horrors of the Budget.
eta: I’d read it originally that your point was that he’d effectively torpedoed himself by submitting the JSA claim.
No probs Paul. When you said you were pushed for time I suspected it was the budget. Looking forward to CPAG’s summary and views on the latter.
Sorry I’m a bit confused .
Claimant makes new claim at some point following a previously failed WCA.
Dec Maker decides no sig worsening or change.
Is this a decision that then closes the claim or just delays any payment or closure until a WCA assessment is done?
I had assumed the former but something said in an earlier comment in this thread made me question this.
Is there any difference if claimant does or does not claim JSA
My question is irrespective of the right to MR/Appeal (I have already won an appeal against a no worsening or new condition decision this week)
..Is this a decision that then closes the claim or just delays any payment or closure until a WCA assessment is done?
I had assumed the former but something said in an earlier comment in this thread made me question this.
Is there any difference if claimant does or does not claim JSA..
The decision whether you can be treated as having LCW, eg for worsening/new condition, pending a new WCA is a determination which doesn’t close the claim. As such, it is generally regarded as unappealable. Claiming JSA doesn’t alter that principle, although an award of JSA separately ends the ESA claim.
I think the issue in this thread about whether there is a right to a WCA for the period when an ESA claim was live, ie before JSA is awarded, is not going to arise very often. That’s simply because once a DM has decided that there’s no worsening etc, there would appear nothing stopping him/her immediately making a new WCA based upon a previous medical/WCA.
The “right to have a WCA” issue is more likely to arise in cases where a person reclaims ESA within 6 months of failing to attend a medical. In those circs, a DM on finding no worsening etc would not be able to immediately make a new WCA decision because there wouldn’t be a previous medical to rely on. The claimant would not be paid ESA while waiting for the new WCA. If they subsequently claim and are awarded JSA in those circs, their ESA claim would end and the question would then be whether they should still be sent for an ESA medical. As discussed above, the answer is hopefully yes.
[ Edited: 20 Jul 2015 at 11:30 am by Tom H ]
Thinking about this (will put some imaginary sample dates to make it clearer and allow me to think about it):
1. 01/01/2014 ESA award ends as no LCW.
2. 01/06/2015 new claim for ESA from this date.
3. 15/06/2015 DM decides that no significant worsening or new condition since 01/01/2014 and therefore cannot treat as LCW. This is, as Tom says, a determination rather than an outcome decision- that is because claimant may in fact have LCW.
4. 30/06/2015 new claim to JSA made by a, by now, hungry, claimant.
5. 15/07/2015 DM awards JSA to claimant from 30/06/2015.
6. 15/07/2015 DM also decides that the claim to ESA from 01/06/2015 is to be refused as claimant now has award of JSA.
————
It seems to me that the difficulty is that the final DM decision on ESA can only apply to dates from and including 30/06/2015 - in other words no decision has been given in respect of ESA for dates from 01/06/2015 to 29/06/2015 (or at least no decision that is correct has been given in respect of those dates).
In this situation isn’t the remedy simply to seek MR and then appeal this final decision on ESA? Ask for a tribunal including a medical member as the issue is whether claimant had LCW on the days in question.
Sorry if I am coming late to this one and repeating what has gone before. Just trying to understand it.
Martin.
Hi Martin,
Does the DM have to make a decision on the ESA claim at stage 6?
A determination has been made that the claimant doesn’t have a LCW so JSA can be awarded.
Couldn’t the DM otherwise ‘let things lie’ and await the result of a WCA?
If this led to the claimant being deemed to having a LCW then ESA could be awarded and from the original date of claim and JSA ceased.
If the claimant is again deemed not to have a LCW then a decision could be made to refuse ESA that could then be subject to a MR/appeal.
Let me know if I’m missing something.
In this situation isn’t the remedy simply to seek MR and then appeal this final decision on ESA? Ask for a tribunal including a medical member as the issue is whether claimant had LCW on the days in question.
I agree. See the last para of my post 3 above:).