had conflicting advice from DWP re this...client told to wait until outcome of ESA tribunal and if unsuccessful the make new claim. on reflection we decided that was rubbish and she rang to make a new claim. She was told not to make a new claim but get a back dated sick note from GP and write a covering letter to JCP and they `would look at it again`.

anyone come across this?

Sat 24-Oct-09 11:18 PM by billmcc

As long as you continue to submit a sick-line while appealling you keep the ESA at the full basic rate ESA until the appeal is decided.

Thanks- I am aware of that. But obviously if we dont make a new claim and lose the appeal we`ve lost the weeks when she may have been in the WRLA group and the loss of the extra money.

I have one of these cases. My client has a new condition and I advised her to make a new claim rather than wait until after her appeal. She tried to do this but was told the same - just send in a new sick note. She has done so and now has a new ESA50 to complete.

I see now that she probably can't make a new claim for a benefit she is already receiving (unless anyone can convince me otherwise). Presumably the new sick note will count as a request for a supersession.

I do have some questions i don't know the answer to..

If she now passes the LCfW test based on the new sick note, from what date will she get the WRA component? Will it be from the date of the sick note or 3 months afterwards?

If she goes to her appeal and loses before she has been reassessed will she contiue to receive ESA or will it stop?

The question seesm to be whether the provision of a new sick mnote starts a new assessment period.

I've been looking at this too recently and it's all a little unclear.

My view is that the claimant should ask for a new determination on LCW. There is no mechanism for this that I can see in the ESA regs (although there is for those who already have LCW - reg 19(7)-(8)) and this seems to be an unfortunate side-effect of treating claimants as having LCW until an appeal is determined.

The problem, as already identified, is that there can't be a new claim. Alternatives could be to seek an ordinary supersession of the decision under appeal on the grounds of a change in circs or to withdraw the current claim and then to make a new one. I would hope that the DWP will simply allow reassessments.

This also has implications for tribunals who are limited in that they cannot consider changes of circs. Therefore, if reassessments do not happen, clients who did not have LCW but would now have LCW stand to lose a lot and the only way of getting a new determination would be to withdraw the current claim (continuing with the appeal) and claim again. The downside to this is that if there is not a new condition or a significant worsening of the existing one, then ESA will not be paid until the LCWA has been carried out (ESA reg 30).

All in all, this is an unsatisfactory problem with no easy resolution. I intend to advise my client to seek a supersession on the grounds of a CoC and see what happens.

First, a new claim is not applicable. Second, the 6 month rule does not apply while an appeal is being pursued (see reg 30 of the ESA Regs). That being so then I think the advice by the Department to get the backdated sick note and covering letter in and they “will look at it again” is sound. This operates as a supersession request on ground of change of circumstances.

Regulation 7(38) of the Decisions and Appeal Regs states:

Date from which decision takes effect:

(38) A decision made in accordance with regulation 6(2)(r) that embodies a
determination that the claimant has limited capability for work which is the first such
determination shall take effect from the beginning of the 14th week of entitlement.

Regulation 6(2)(r) states:

(r) is an employment and support allowance decision where, since the decision
was made, the Secretary of State has received medical evidence from a health
care professional approved by the Secretary of State for the purposes of
regulation 23 or 38 of the Employment and Support Allowance Regulations.

Regulation 7(38) crucially states “from the beginning of the 14th week of entitlement”. So, in my view, because entitlement has been continuous then any change of decision in the client’s favour takes the 13 week period back to the beginning of the original claim.

This is an interesting obversation Paul. Are you saying that a claimant who did not have LCW (and who, for arguments sake, will not win an appeal), then applies for a supersession on the grounds of a change of circs and passes the LCW will get arrears of benefit covering the earlier period when he failed the LCW...?

I think so, Tony. I've only gave this question a cursory look for now. The regs I’ve quoted seem to suggest this but I’m not 100% confident at this stage. There might be something I’ve overlooked and I’ll give it more consideration when I have more time. What do you think?

What about reg 34?

Determination of limited capability for work-related activity

34.—(4) Where a determination has been made about whether a claimant— (c) is to be treated as not having limited capability for work-related activity,

the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

(5) This paragraph applies where—

(a) the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;

(b) the Secretary of State wishes to determine whether the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity, was made in ignorance of, or was based on a mistake as to, some material fact; or

(c) at least 3 months have passed since the date of the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity.

Reg 34 is concerned with a reassessment of which group the claimant should go in. It's phrased in similar terms to reg 30 which is regarding reassessments of limited capability.

Paul, looking at the DA regs, I found reg 7(39) which says that where the application for supersession is made by the claimant, the effective date is the date of the application. Shame.

This would seem to the solution to this thread... It's a stated ground for supersession of ESA. I cannot think of any other situation where a claimant would want a reassessment of thier limited capability for work. - though this reg would also cover changes to the additional components.

Ah well! It was a nice try.