Hi

I have a client who lost an ESA appeal a couple of weeks ago (she carried on claiming ESA when appealing). I thought she could make a new claim even though her condition has not got worse as it has been longer than six months after the inital decision to disallow ESA. Anyway we have made a new claim and the department have said over the telephone that the six months starts from the date of the appeal. They said that this was because the client continuted receiving ESA whilst appealing.

ESA Regulation 30 paragrah 2 says that
The conditions are—

(a)
that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and .
(b)
that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless— .
(i)
the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination; .
(ii)
a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or .
(iii)
in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation. .

I assumed that the "been determined" part only meant the initial decision by the ESA department and would not include a decision by an appeal tribunal. Have I made a mistake? The department are going to ring me back to discuss the matter further .......................................

Thanks

Good news, the department have accepted that I am correct and are going to pay the money. Sorry if I have wasted anybodys time.

And, as for ICB, a person can make another claim within the 6 months with the same condition. However, because a person cannot be treated as having limited capability for work they cannot be paid until the 6 months is up or until they pass another medical, whichever comes first.

Thanks for that Nevip. I would not normally advise someone to apply within six months if their condition had not got worse as they would be waiting for ages for their first payment.

Sorry to bring this up again but over Christmas I had two similar cases. Halifax BDC have refused to pay on the new claims. They say this because the six months starts from the date of the decision they have to make following the tribunal. That is to say, where a person who has been getting ESA during an ongoing appeal, they have to make a further decision that that person no longer has LCW.

I spoke to one of their managers who stated this further decision also carries appeal rights. So if my client appeals this decision they will pay them based on that, but cannot pay them on the new claim. This manager sent me an extract from their internal internet confirming this and that further guidance will follow in a DMG memo.

This manager was not happy with the situation because she believed that by continuing to appeal claimants could remain on ESA forever.

Is this happening elsewhere in the country?

I have had another member of the department say over the telephone that the six months starts from the date of the tribunal. I have not had an official decision as yet.

If they wont pay out I am going to make a complaint.

By the way, in my opinion, the manger should not be expressing opinions about people staying on ESA forever, he is they to administer the rules not make them.

I am being told it is not the date of the tribunals decision that counts but the date of Jobcentre Plus's second decision. In one of my cases this was 3 days after the tribunal and in the other 2 weeks. In both cases my clients say they didn't get these decision letters from Halifax BDC, I only got the dates from telephone calls. So I have asked the manager to look into this.

Also in both cases we have lodged appeals about the refusal of the new claims and followed their managers advise and lodged appeals about these second decisions. My clients need money now and are not prepared to go into the JSA system.

It will be interesting to see what this future DMG memo is actually saying, if of course it is ever issued.

Is anyone else coming across this problem?

No experience of this up to now but I have just advised someone to make a fresh claim following unsuccessful tribunal 7 months after initial decision - I will wait outcome with unexpected excitement! I will let you know what happens.

It will fascinating to find out what this mysterious second decision is and how it might be relevant.

Tony

Would it be useful for us to pursue this issue through the JCP Customers Rep group, as senior DWP officials who attend this group, should be in a position to find an answer and resolve this issue ?

Perhaps they would also consider issuing a memo to JCP's and DM's ?

If you could do that casework team it would be very helpful.

We have a local liaison meetings with JCP on 21/1/10, at which I intend to ask them to chase this future DMG memo, but not sure how affective that will be.

I have now emailed a senior JCP director, who has requested that this issue be sent to the policy team whose remit it is under, i have received confirmation that this is currently being dealt with, although no indication of time it will take.

The issue of contradictory information/advice, is a regular feature at CRG meetings, personally i find it difficult to understand that were you have accessible policy, why it is not refered too before information or advice is despatched. We do receive reasurances that this should be the case, so it is always interesting to learn of cases where this is not the practice.

Just imagine as WR adviser giving incorrect information with regard to eligibility or even a claim !!!

Halifax BPC appear to be confusing date of a DM decision with the date they implement a tribunal decision. In the case of a succesful appeal the tribunals decision replaces the original DM decision under appeal from the date the DM decision was made.

The DM does not have to make any second decision following the tribunal - they simply have to implement it which is only an administrative process.

Have heard this 'second decision' line before. What some DWP staff seem to think is that a DM has to decide if the tribunal decision is correct before implementing it (i.e.the possibility that the DWP may consider applying for a statement of reasons and a possible appeal to 2nd tier) and that that consideration is of itself a decision within the DMA regs.

It does illustrate a lack of understanding of the decision making and appeals regs and the higher status of a tribunal over a DM in the legal process (even, on occassion, by DMs or appeals section staff).

At the local JCP liaison meeting this morning the Halifax BDC manager who had sent us the extract from their internal internet was present. She confirmed that it had been issued in July, and that the future DMG memo it refers to is in its second draft and should be issued shortly.

The internal internet guidance explains that the problem is caused by reg 6. I pointed out that the concensus amongst the Welfare Rights community was that they should be looking at reg 30, and that most other areas of the country do not appear to be operating in this way. This surprised the Halifax manager.

At least one of my clients has now been paid based on his appeal against the second decision, I am still awaiting confirmation from the second client.

I had asked the Halifax manager to bring a copy of the second decision letter along to the meeting. She was unable to do so and confirmed that she had never actually seen one. However, she is arranging for their system to produce one so that she can check that it is fit for purpose and that it is actually issued to the client.

Finally we have the formal response from the policy making team:

Regulation 30(2)(b) of the Employment and Support Regulations operates so as to prevent a customer from being treated as having limited capability for work (LCW) for a period of 6 months preceding the date of claim, if, within that period, it has been decided that the customer does not have LCW and the illness or disability has not changed in any way.

Where ESA is disallowed following a Work Capability Assessment (WCA) and the customer appeals, ESA is paid at the assessment rate pending the outcome of the appeal. No claim is required for this award of ESA.

When a claim is made, we must consider whether or not it has been determined that customer does not have LCW in the preceding 6 months. So, in the situation where there is an outstanding appeal, the last LCW decision was the one that disallowed ESA. However, in this situation, we cannot determine a new claim as we have an award of ESA in existence. Customers should therefore not be advised to make a claim in these circumstances. If there has been a change such as a deterioration or a new condition, we will consider whether the customer should be referred for a further WCA irrespective of the outstanding appeal.

If the appeal has been dismissed, the award of ESA at the assessment rate is terminated and the date of that decision would be the relevant date when considering the 6 month period in relation to any further claim.

The decision of the First Tier Tribunal is not the relevant date when considering the application of Regulation 30.

DWP Legal services are currently preparing a DMG memo that will clarify this issue. We expect that this will be published in late February or early March

Just to clarify,

The six month rule does not prevent entitlement to ESA (or pre-ESA benefits under the relevant PCA procedures).

It treats a claimant as NOT having LCW until the WCA has been carried out - which should still be within the assessment period. Once done, the claimant has fresh appeal rights against the decision incorporating the LCW and can again be paid ESA.

My opinion is that this cycle can indeed carry on forever (which is why I've never mentioned it here - though I mention it to client's all the time ) so the BDC manager's similar claim was well-reasoned and the criticism in the following post was a little unfair.

It has long been the case that with Pre-ESA benefits (and probably ESA too - though I've not yet come across it myself) the JC+ use the 'six month rule' to deny benefit outright. That is patently wrong and should be challenged by complaints and appeals.

I agree that the cycle can carry on forever. I am also sure that was not the intention of parliament when it passed the legislation. In the past, this was unlikely to happen due to shorter waiting times for tribunals to take place.

However, I still dont think that the manager should be making comments about whether the rules are fair or not, he is there to administer the rules not make them.

Thanks reporting back casework team. Hopefully the DMG Memo will be reported as a news story. I agree with iuto44 this cannot have been the intention of the legislation. So at some point I think the situation will change again. Have other people now got clients being paid ESA based on an appeal about the second decision?

Sat 30-Jan-10 06:58 PM by iut044

By the way I have had two clients recently claimed ESA straight after losing an ESA appeal and they have been paid with no problems. It was the Preston office who made the awards.

So how does this work when the client actually wins their appeal?

Our client appealed a LCWA decision and received ESA pending the outcome of his appeal. He waited a long time for his appeal hearing, during which his personal adviser found him a job. He actually worked for only two weeks before it became clear he was too ill to work.

Cl then, not only won his appeal, but was placed in the support group. Shortly after the appeal hearing he broke his leg and (without talking to us) made a new claim for ESA for this condition. Cl now has an appointment for a medical. DWP insists that cl must attend the medical because he has made a new claim (although it's not absolutely clear as to whether they have failed to link the two earlier periods of incapacity). Our view is that cl is in the SG and exempt from conditionality so is not required to attend the medical. What do others think?

Regs 19 and 34 ESA regs, give DM's a free hand to force people back for determinations about LCW and LCWRA.

With other benefits, a new claim when an award is already in place is usually treated as an application for a supersession.

I suppose you could argue this to to be the case and withdraw the 'application/claim', but the department would still be within their rights to demand a reassessment using these regs if the conditions are met.

Apropos the posting on 29 Jan from the RNID Legal Casework Officer quoting the response from the policy-making team, can s/he or someone else clarify what seem to be conflicting statements in the ante-penultimate and penultimate paragraphs.

The former states that 'If the appeal has been dismissed, the award of ESA at the assessment rate is terminated and the date of that decision would be the relevant date when considering the 6 month period in relation to any further claim'. My reading of this is that decision being referred to is the First Tier Tribunal's decision and that the six months starts on the date of that decision.

The latter states that 'The decision of the First Tier Tribunal is not the relevant date when considering the application of Regulation 30' which seems to be saying completely the opposite.

Thank you

This will probably have to be decided by the UT.

My view is that the 'determination' referred to in the regs about the issue can only relate to the initial DM decision. This is because tribunals only consider whether the initial determination was correctly reached and, moreover, tribunals are prevented from considering circs not obtaining at the date of the decision. Bearing this in mind, it is simply not possible for the tribunal date to be the effective determination.

The question doesn't arise in the case of an a successful appeal, so I would always - unless a UT judge says otherwise - push the line that a new claim must be paid immediately for the assessment period if it has been six months since the original determination or the other rules are met (ie. change of circs or a new condition).

If it were the case that It was always exactly six months from determination to appeal, then it is possible for a claimant to remain on assessment phase ESA for ever...

"If it were the case that It was always exactly six months from determination to appeal, then it is possible for a claimant to remain on assessment phase ESA for ever".

And if the DWP think that this is unfair, well it started it!