ESA claim under review for FTA original claim awarded on appeal.

Hello all

sorry to go over old ground as I am sure similar queries have previously been on rightsnet.

Have a client who had her ESA stopped in April due to failure to attend. Had to put in new claim whilst waiting for the appeal. The new claim was also turned down due to failure to attend a medical. The new claim is now under review/reconsideration with the benefits agency, client’s mental health issues prevented her from attending. The original appeal for the FTA in April was heard on 03/09/10 and the judge decided that the client had shown good cause for failure to attend.

What happens now, does the new claim now get withdrawn and ESA awarded and ongoing payments on the appeal decision. Or does the appeal mean payment only upto the date of new claim, and we have to carry on the review/reconsideration for the new claim, and wait for that to be hopefully awarded.

I’m not sure it’s old ground.

If I understand the situation correctly, the client failed to attend two medicals.  The tribunal decided he had good cause re the first of these.  As a result, the DWP are likely to pay ESA upto the date of the decision that he failed to attend the 2nd medical.  You could ask the DM to revise the latter decision under Reg 5A Decision and Appeal Regs 1999 on the strength of the successful tribunal, especially if the reason for failing to attend both medicals was the same.

However, if the DM refuses to revise he should immediately carry out a WCA re the original ESA claim.  It would be pointless making a further ESA claim whilst waiting for the outcome of that WCA because such a claim would not be payable due to the 6 months rule, ie it would be within 6 months of the decision that the client failed to attend the 2nd medical.

Following the WCA, if the client is found to have LCW, the DM should revise the FTA decision re the 2nd medical for official error.

Following the WCA, if the client is found not to have LCW, they should appeal that decision and be paid ESA pending that appeal.  It might be worth asking for that LCW appeal and any FTA appeal re the 2nd medical to be joined, with the former being heard first by the tribunal.  Should a tribunal allow the LCW appeal they could then revise the FTA decision for official error as above.

Many thanks for your reply. I suspected it may be the case that would only be paid upto 2nd FTA. The medical evidence of the client’s mental health issues sent to the tribunal service is the same evidence sent to the benefits agency for the 2nd FTA, so I will certaintainly try reg 5A, and hope for some consistency.

Sorry, that should be Reg 3(5A)