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

ESA Pending appeal

Advisor_1
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Byker Community Trust

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Hi all,

Just wanted to check - Normally, if a claimant fails WCA, goes through MR and then submits appeal, once appeal is lodged they can move back to ESA f they can still get a sicknote etc.

Does the same apply if the claimant was refused ESA because DWP said that there ha not been significant deterioration in his health? Client had a Tribunal on 27/01 and it failed. He made a new claim approx. 3 weeks later but the DWP are saying that there is no new health condition and no significant deterioration in his health. M has been unsuccessful and appeal has been lodged but I wasn’t sure if ESA would be paid pending appeal or not.

All thoughts welcome.

thanks

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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Your client has had a negative determination under a WCA effectively, with the FtT decision, so he is unable to be paid ESA pending appeal unless there is significant deterioration or new health condition on the face of it.

ESA and abolition of the ‘six month rule’

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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What I’m still not clear about with these ‘significant deterioration’ cases is whether there is a duty on the DWP to accept the new claim (albeit with referral back to medical services for further WCA before any payment is made) or not. It seems to be so arbitrary- some claims are rejected out of hand (without referral to medical services) and some aren’t.

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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The guidance tells decision makers that ‘if the claimant states that they have a new or significantly worse condition since the previous determination was made, they should be asked if they have further information or evidence of this. In the case of deterioration, the claimant should be asked how it affects their ability to perform the functional descriptors since the previous determination…’, although decision makers are reminded that corroboration of a claimant’s own evidence is not required unless it is improbable or contradictory. The guidance also says that where the claimant states that her/his health condition has deteriorated since her/his last assessment, the decision maker should ‘consider whether this change would be likely to be sufficient to score 15 points or more.’

Examples that follow in the guidance include an instance where a decision maker ‘determines’ that the claimant’s reported deterioration of reduced walking ability following surgical intervention ‘might’ result in him scoring at least 15 points and so treats him as having limited capability for work pending a new WCA – ie, so as to permit immediate payment of some ESA. In another, a claimant reports a worsening of ability in her right hand, but the decision maker ‘determines’ that she would be ‘unlikely’ to score further points, and so does not treat her as having limited capability for work pending another assessment. In that example, the decision maker considers that there is already sufficient evidence that the claimant fails the WCA again without further evidence.

ESA and ‘significant worsening’

The phrase ‘clear as mud’ springs to mind…..