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

decision on repeat claim whilst waiting appeal decision on previous claim

Welfare Rights Adviser
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Social inclusion unit - Swansea Council

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Joined: 23 June 2010

Hiya

Have an appeal tomorrow - client being paid pending appeal, but made a new claim on new condition after the first claim was refused and then failed the second wca but has had no decision letter for this but was verbally told about this decision on the phone with esa.

In trying to establish what is going on the DWP have said:

‘This is in line with current legislation, that where a customer notifies a change in their health condition, they should be referred for a WCA as normal even though the Appeal has not been heard.  Following the application of the WCA, the DM makes a determination on limited capability for work and where it is determined that the customer does not have LCFW, that determination is treated as not made until the appeal outcome is known.’

So where is this legislation, how have they made a decision but not made it, is the appeal for a closed period or not?
What is going on?

Cheers

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Reg 3(5A) of the D&A Regs allows the decision on the second claim to be revised if the claimant wins his appeal on the first claim.  Delaying the notification of the decision on the second claim seems to be a perfectly sensible way of working in cases where it is sufficiently certain that the second decision will, in fact, be revised. 

A decision is actually made on the date that a decision maker actually makes and records it.  The notification date of that decision does not affect that but simply delays the date that the clock runs from for appeal purposes time limits.

Welfare Rights Adviser
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Social inclusion unit - Swansea Council

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Total Posts: 163

Joined: 23 June 2010

Brilliant - thanks

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Welfare Rights Adviser - 25 May 2016 10:54 AM

Hiya
is the appeal for a closed period or not?
What is going on?

Cheers

As nevip said.

The only way the appeal would be for a closed period would be if the claimant obtained a better outcome on the new claim than on the appeal - e.g. FtT awards ESA with WRAC but claimant already has SC on the new claim. Unlikely, but possible.