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ESA pending appeal
Hi,
This should be straightforward but I just want to check im not missing anything.
Client claimed ESA, found fit for work, MR not successful and so appeal lodged. We have the appeal bundle and a date is set as well for appeal.
Client is struggling with JSA an wants to move back to ESA pending appeal. He has called JSA and terminated the award and then called ESA, where an advisor told him that they cannot re-instate for another 28 days.
Is it likely that he has just spoken to an advisor who doesn’t understand what is going on? I cant see any reason why this would be refused.
This seems to be a DWP internal target - it gives itself 28 working days (i.e. 5 1/2 weeks) to sort out these claims and the call centre may well try to fob you off with ‘nothing we can do until then’ stuff. I’ve heard it a few times.
Escalate it, complain, stress hardship, etc., and it can get done quicker.
Client has to think about timing when terminating JSA and getting back on to ESA whilst waiting for appeal; always terminate JSA claim as soon as possible after it is paid to try to reduce waiting period with no money before ESA payment.
Thanks Billy. He got paid today which is why we suggested he did it today. So we have 2 weeks to get it sorted. He is coming in to see me today and I will call them. I just had a momentary panic that something had changed that I wasn’t aware of.
Thanks for your quick reply.
Just checking for safety sake but he’s not had previous WCA failure has he, as this would obviously impact i.e. no ESA payable at all until positive decision?
Apologies if teaching to suck eggs and all that.
Just checking for safety sake but he’s not had previous WCA failure has he, as this would obviously impact i.e. no ESA payable at all until positive decision?
Apologies if teaching to suck eggs and all that.
Paul are you able to expand on this fr me please as we have not experienced this. A colleague of mine has a Client who claimed ESA In late 2015, had WCA, failed and didn’t challenge it. Made a new claim in January 2016 on the grounds of new health condition and awarded at assessment rate, but failed WCA in June 2016. He has been advised that if MR fails this time round, that when he appeals, he will not be allowed to claim ESA pending FTT.
There are other complications as he is in a full service area fo UC and so has been advised by another organiation to try and live on nil income, until MR complete and then apply for ESA to be re-instated, but a 3rd organisaiton have become involved and have advised that ESA would not be payable.
Just trying to establish what is best for him.
This article by Simon Osborne of CPAG ESA and abolition of the ‘six month rule’ explains what I was alluding to.
In your client’s case, it sounds like he was paid assessment rate ESA initially on later claim as DWP accepted new health condition. Note that the article states that:
Following the amendments, the regulations for ESA pending appeal provide that:
* where a claim for ESA is made on or after 30 March 2015, and that results in a WCA failure which is appealed, if that is the claimant’s first failure of the WCA, or the first since a previous decision (including by a tribunal or court) that the WCA is satisfied, s/he can in all cases get ESA pending the appeal;
* where on a claim made on or after 30 March the WCA failure is otherwise the second or subsequent WCA failure the claimant has had, s/he can only get ESA pending appeal if her/his condition has got significantly worse or s/he has a new health condition.
My take would be that DWP has implicitly accepted fact of new health condition as they did pay assessment rate. If the decision on second WCA is that client still doesn’t score enough points but the report does accept or acknowledge presence of new health conditions, then they should pay assessment rate ESA from date appeal lodged. If, however, DWP state that following WCA, they don’t accept client’s new health condition, then I fear they may be caught by these.
Thank you Paul, I was aware of that, I was just confused by the context.
Essentially, the DWP have accepted a ne condition as ESA was paid at the assessment rate, so there should be no reason why this cant be paid pending appeal;
thank you for your prompt reply.
Essentially, the DWP have accepted a ne condition as ESA was paid at the assessment rate, so there should be no reason why this cant be paid pending appeal;
He’s likely to qualify for UC pending the appeal given he’s in a full digital service area, although should he win his appeal he’d have to stay on UC it appears.
If he qualifies for contributory ESA, the DWP are likely to refuse to pay it pending his appeal. That’s because they do not regard someone previously treated as having LCW under Reg30, as this client was due to his/her new condition, as having been determined to have LCW (see the relevant DMG on repeat claims). Consequently, they’d not regard the most recent WCA failure as the first such failure but the 2nd so that the claimant would not be appealing against a “relevant decision” for the purpose of Reg 26(3) ESA Regs 2013. In other words, being treated as having LCW pending a WCA does not break the link between the previous WCA and the new one. They’re wrong about that in my view but there you go.
Edit: Obviously, a condition is only new if it wasn’t taken into account at the last assessment. On the info provided he doesn’t have any “new” condition for the purpose of being awarded ESA pending appeal.
[ Edited: 29 Jul 2016 at 09:49 am by Tom H ]
Edit: Obviously, a condition is only new if it wasn’t taken into account at the last assessment.
Is it as straightforward as this? My dealings with DWP on the issue give me the impression that it is the primary condition on the initial claim or what is on the fit note that seems to matter when deciding whether it is a ‘new’ condition. I’ve only had pretty limited dealings with this though.
After a sanity check really…...
I think I have this right : cl is long term ESA claimant, and failed WCA in July. Currently getting JSA. Has undergone MR and this has not changed the decision so we have appealed. Awaiting response from HMCTS, so client still on JSA.
I have checked client’s records and can see he only ever failed WCA once previously ( in 2012), went to tribunal and they put him back in Support Group.
Client keen to get back on ESA (and we would support him in this view as chances of being sanctioned quite high).
Once HMCTS acknowledge a valid appeal client going to ask to go back on to ESA. His DEA told him its a bit hit and miss as to who will get ESA and advised him not to do it but to stay on JSA.
The sanity check I am after is this: the previous WCA failure (in 2012) wont stop the swap to ESA now because he took the decision to tribunal and won? I think I picked up the article from CPAG above correctly in that it would only be if the previous tribunal had failed him in that appeal that he would not now be able to get JSA until a new tribunal put him in the WRAG or SG.
Many thanks!!
After a sanity check really…...
The sanity check I am after is this: the previous WCA failure (in 2012) wont stop the swap to ESA now because he took the decision to tribunal and won? I think I picked up the article from CPAG above correctly in that it would only be if the previous tribunal had failed him in that appeal that he would not now be able to get JSA until a new tribunal put him in the WRAG or SG.
Many thanks!!
That’s absolutely right (I presume you mean ESA rather than JSA in the final line) - with the provision of a Med3 ESA should be paid pending appeal, as the previous refusal was overturned by Tribunal.
cl is long term ESA claimant, and failed WCA in July.
“Long term” suggests s/he was on ESA before the end of March 2015 in which case the new rules wouldn’t apply. Instead, as long as s/he has appealed the latest WCA failure they can be paid ESA pending appeal irrespective of how many WCAs they’ve failed in the past or whether or not they successfully appealed such failures.
That’s absolutely right (I presume you mean ESA rather than JSA in the final line) - with the provision of a Med3 ESA should be paid pending appeal, as the previous refusal was overturned by Tribunal.
Yes, sorry, I meant getting ESA on appeal back again, not JSA as I stated in the final line of my post above. Thanks for that Simon.
“Long term” suggests s/he was on ESA before the end of March 2015 in which case the new rules wouldn’t apply. Instead, as long as s/he has appealed the latest WCA failure they can be paid ESA pending appeal irrespective of how many WCAs they’ve failed in the past or whether or not they successfully appealed such failures.
Yes Tom, he has been on ESA since before March 2015. Many thanks