Hello

I complained to the local BDC (Bathgate) about their delay in reinstating ESA payments at the assessment rate once someone has made an appeal. They insist that they will only do this after they have reconsidered their decision. I've now had a formal response, the main part of which is below:

"Social Security Act 1998 Sections 9 and 10 require we carry out a reconsideration before any appeal proceeds. Benefit will never be reinstated until this action is carried out. If the reconsideration is not in the customer's favour then benefit may or may not be reinstated pending appeal, this depends on individual circumstances"

So, as far as they are concerned, they just won't pay until they have made a reconsideration, even though they will end up paying ESA whether this is successful or not. I'm going to write back, arguing that they should be paying once a 'claimant has made and is pursuing an appeal' as per 30 (3) of the ESA regs 2008.

Are other BDC's doing this? has anyone else challenged/complained?

To my mind this is an abuse of process. Suspension of benefit is governed by reg 16 of the D&A Regs, particularly para 3(a)(ii) which states that benefit can be suspended where “an issue arises whether a decision as to an award of a relevant benefit should be revised under section 9 or superseded under section 10”.

This provision was enacted largely to give power to a DM to suspend where he receives information that leads him to believe that an issue as to ongoing entitlement of benefit arises and was not designed to withhold payment of benefit lawfully due while a DM takes a ‘second look’ with a view to making a decision more favourable to the claimant than the one under appeal.

This needs raising at a higher level than your local BDC. I’ve not heard of it happening elsewhere and it seems like it’s the work of a local manager trying to make a name for himself with some contrived fancy legislative footwork. May he soon trip over his own feet and fall flat on his face.

Altho I haven't looked at suspension of benefit under reg 16 of the D&A Regs, I'd just like to add this link to Welfare Rights Bulletin (213 December 2009) on ESA: repeat claims and appeals @ www.cpag.org.uk/cro/wrb/wrb213/ESA.htm
The article supports the Reg 30(3) point - "regulation 30(3) ... allows claimants who appeal against failing the WCA to continue getting ESA until the appeal is heard by a tribunal. It only applies, however, where the claimant is appealing a decision that s/he does not have limited capability for work. It does not apply where the appeal is against a decision that s/he is treated as not having limited capability for work because of a failure to return a questionnaire or attend a medical."

Thanks for the replies

I am going to take this further - my colleague has just had a similar case. So i think we'll send a joint reply and copy in the two people's MPs to see if that helps

I'd like to take this up at a higher level so does anyone know who the next person up from the Bathgate Benefit Delivery Centre Manager would be? or have contact details?