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Top Incapacity related benefits topic #4900

Subject: "ESA and Appeals - DMG 07/10" First topic | Last topic
Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

ESA and Appeals - DMG 07/10
Mon 22-Feb-10 01:07 PM

DMG Memo 07/10 (todays Rightsnet news story) is well worth a read, especially for those who contributed to this discussion:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=111&topic_id=4514&mesg_id=4514&page=#4800

The DWP are now taking the line that:

- ESA after appealing is a new claim, though new claim is required
- it initiates a new assessment phase
- after a successful appeal, the FfT decision is to be implemented only as far as the new award of ESA, from whence, a new LCW assessment is to be applied.

This is worrying development for two reasons:
1) It's wrong (IMHO)
2) It opens up all sorts of nasty complexity and potential for error and problems
3) It could well be in reaction to the afore-mentioned discussion as it has the effect, probably in most cases, of removing the 're-cycling' element of new claims following appeal outcomes

benefit simplification... what simplification...?

  

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Replies to this topic
RE: ESA and Appeals - DMG 07/10, Jane80, 22nd Feb 2010, #1
RE: ESA and Appeals - DMG 07/10, dundeelaw, 23rd Feb 2010, #2
      RE: ESA and Appeals - DMG 07/10, Tony Bowman, 23rd Feb 2010, #3
RE: ESA and Appeals - DMG 07/10, JimC, 01st Mar 2010, #4
RE: ESA and Appeals - DMG 07/10, anned, 04th Mar 2010, #5
RE: ESA and Appeals - DMG 07/10, ariadne2, 04th Mar 2010, #6
      RE: ESA and Appeals - DMG 07/10, david fernie, 05th Mar 2010, #7
           RE: ESA and Appeals - DMG 07/10, stevenm030, 09th Mar 2010, #8
                RE: ESA and Appeals - DMG 07/10, stevenm030, 09th Mar 2010, #9
                     RE: ESA and Appeals - DMG 07/10, Tony Bowman, 19th Mar 2010, #10
                          RE: ESA and Appeals - DMG 07/10, Jane80, 24th Mar 2010, #11
RE: ESA and Appeals - DMG 07/10, tom_iow, 24th Mar 2010, #12
RE: ESA and Appeals - DMG 07/10, pclc, 24th Mar 2010, #13
      RE: ESA and Appeals - DMG 07/10, Jane80, 01st Jun 2010, #14
           RE: ESA and Appeals - DMG 07/10, andyp4, 09th Jun 2010, #15
                RE: ESA and Appeals - DMG 07/10, nevip, 09th Jun 2010, #16
                     RE: ESA and Appeals - DMG 07/10, andyp4, 09th Jun 2010, #17
                     RE: ESA and Appeals - DMG 07/10, nevip, 09th Jun 2010, #18
                          RE: ESA and Appeals - DMG 07/10, nevip, 09th Jun 2010, #19
                          RE: ESA and Appeals - DMG 07/10, andyp4, 09th Jun 2010, #20
                     RE: ESA and Appeals - DMG 07/10, pete c, 09th Jun 2010, #21
                          RE: ESA and Appeals - DMG 07/10, nevip, 09th Jun 2010, #22
                               RE: ESA and Appeals - DMG 07/10, nevip, 09th Jun 2010, #23

Jane80
                              

Welfare Rights Officer, Notts County Council
Member since
27th Mar 2008

RE: ESA and Appeals - DMG 07/10
Mon 22-Feb-10 02:03 PM

I agree - worrying. It is as if they are looking at a different version of the regs.

The strange thing about this DMG is that it seems to say (at para 30 and 22-24) that if you lose a LCW appeal, because the award of ESA made whilst appealing is a separate award to the one under appeal the DM then has to look again and make a new decision about if you have LCW when the new assesment phase ends. So (if you follow this DMGs interpretation) surely you then have a new appeal right against the new LCW decision on your new claim.

  

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dundeelaw
                              

WRO/LA/FIO, Dundee North Law Centre
Member since
24th Sep 2009

RE: ESA and Appeals - DMG 07/10
Tue 23-Feb-10 08:20 AM

The new guidance thankfully is not statute. It also explains why just yesterday an appelant was advised just before her appeal that her ESA, the parallel other "claim", had been stopped as she failed the LCW. However on appeal of the orginal claim, was awarded ESA .
And it appears to me that seperate notiifcations of failed LCW should be issued to claimants after an unsuccesful ESA appeal - with seperate appeal rights as these are supersessions and here I am unusure but with continued entitlment to ESA pending outcome of any fresh appeal?
tom

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: ESA and Appeals - DMG 07/10
Tue 23-Feb-10 11:18 AM

It also explains why just yesterday an appelant was advised just before her appeal that her ESA, the parallel other "claim", had been stopped as she failed the LCW."

No it doesn't. According to this guidance the LCW shouldn't be done on the "other" claim until the appeal has been heard on the first claim because, in that respect, they are applying reg 30(3) (treated as LCW whilst appealing).

The difference is that the accepted view thus far is that the assessment phase ends on claim one only when the tribunal has been heard, but the guidance appears to be saying that the assessment phase ends with the determination on claim one, and claim two has a new assessment phase that is subject to regs 30(3) and reg 6 (a new assessment phase starts and claimant treated as having LCW until appeal heard).

I think I can see why the DWP might have taken this interpretation, but I really don't think they have forseen the consquences, which will probably have the most negative impact on JC workloads.

  

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JimC
                              

Casework Supervisor, Mendip CAB
Member since
06th Oct 2005

RE: ESA and Appeals - DMG 07/10
Mon 01-Mar-10 03:35 PM

Hi

On a slightly different tack, but concerning the same DMG

- I was concerned to read that they are suspending payment of assessment rate ESA after the first tier tribunal has made a decision, but whilst the case is being taken to the upper tribunal

I don't think that there is any reason for suspending the claim, I believe that entitlement to assessment phase ESA should continue until the appeal has gone as far as it can go ( in a simillar way to IS- in C(IS) 2654/1999)

so if the appeal is still a live one then the appellant is still entitled , so no need to suspend it.

it could have the effect though of putting people off of appealling to the upper tribunal. also, I don't think that a decision to suspend is appealable, which is really bad news

I've got a case like this at the moment, still considering my clients options

Jim Cook

  

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anned
                              

Welfare benefits worker, Hambleton Citizens Advice Bureau, Northallerton
Member since
06th Apr 2005

RE: ESA and Appeals - DMG 07/10
Thu 04-Mar-10 04:33 PM

Can I ask a vaguely related question which may seem to have an obvious answer?

If an ESA appellant does not respond to the TAS1 and the appeal is struck out, does all the ESA he has received since the date of the decision on LCW become overpaid, as he has been receiving it only because he was appealing?

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: ESA and Appeals - DMG 07/10
Thu 04-Mar-10 08:17 PM

There must be case law on the comparable situation with IS in an IB appeal - though I have to say I can't find it. But if it was overpaid, under which s 71 head would it be recoverable - failure to disclose or misrep?????

  

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david fernie
                              

WRO, Appeals Section, Glasgow City Council
Member since
14th May 2004

RE: ESA and Appeals - DMG 07/10
Fri 05-Mar-10 10:22 AM

I would think that the claimant would only cease "pursuing" the appeal at the point it was struck out. Therefore the assessment period of ESA would not cease until that date.

We have had some cases, the details have escaped my porous memory, where an overpayment has been pursued over a failure to disclose by the claimant that an appeal has been struck out and benefit continues to be paid.

As the Tribunals Service should notify the DWP of the striking out of the appeal, there could be a defence against the failure to disclose as the SofS would already know the information.

David

  

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stevenm030
                              

welfare rights officer, dundee city council welfare rights
Member since
06th Jun 2008

RE: ESA and Appeals - DMG 07/10
Tue 09-Mar-10 09:40 AM

was there not a recent upper tribunal decision where they found that the fact the dwp should know something doesnt take away the clients duty to disclose?

just going from memory here so may be wrong.

  

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stevenm030
                              

welfare rights officer, dundee city council welfare rights
Member since
06th Jun 2008

RE: ESA and Appeals - DMG 07/10
Tue 09-Mar-10 09:43 AM

the decision i was speaking about was CIS/2710/2008

only just head a brief read over it though so i may be wrong that it could affect esa cases.

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: ESA and Appeals - DMG 07/10
Fri 19-Mar-10 09:51 AM

Fri 19-Mar-10 10:12 AM by shawn

(Edited to shorten link)

And they're at it again...! Have a read of DMG Memo 16/10 on this RN news thread:

ESA following a successful incapacity for work appeal

So now, those people who have claimed ESA whilst appealing IS/IB PCA failures, and who win their appeals, will be subject to both the PCA AND the LCWA.

A shortcut to migration perhaps... Or maybe a public demonstration of how to further increase complexity with the stroke of a pen.

I haven't gotten around to checking out the legality of this one yet, but in the event that it's true, it would surely have been considerably more cost-effective to make an amendment to the rules preventing 'dual entitlement'.

Any thoughts...?



  

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Jane80
                              

Welfare Rights Officer, Notts County Council
Member since
27th Mar 2008

RE: ESA and Appeals - DMG 07/10
Wed 24-Mar-10 07:39 AM

Hello,

Been looking at the misc amendment regs (SI.840) from the news page in relation to this.

These amendments seem to confirm that there is only the one assessment phase, that ends with the appeal determination. I think this has always been clear.

But it does seem to suggest that the ESA paid whilst appealing is a new claim. Particularly paras 2 and 7.

What do people think?

  

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tom_iow
                              

Adviser, Isle of Wight CAB
Member since
08th Dec 2009

RE: ESA and Appeals - DMG 07/10
Wed 24-Mar-10 09:50 AM

It seems inherently wrong to start a new assessment phase.

This denies an effective right of appeal, because even though the decision maker's decision is quashed it is still allowed to have a detrimental effect on the claimant: it is essentially equivalent to having no right of appeal of the removal of benefit and simply making a new claim.

  

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pclc
                              

legal advice worker, plumstead law centre
Member since
16th Feb 2006

RE: ESA and Appeals - DMG 07/10
Wed 24-Mar-10 12:46 PM

Unfortunately the position has not been clear - I think the situation before the amendment regs was; assessment phase brought to an end by failing WCA; new assessment phase starts when appeal lodged as this is a new award of ESA; negative Tribunal decision does not end new assessment phase - DM has to use Tribunal decision to make new decision that claimant does not have LCW, and bring new assessment phase to and end; this gives new right of appeal - hence the discussion on another thread about potentially remaining on assessmnet phase rate of ESA indefinitely.
Do the amendment Regs change this; implies assessmnet phase now lasts up to Tribunal, but what of the fresh award given under Reg.30 pending the appeal? What mechanism is there to end the fresh award?
My head hurts.....

  

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Jane80
                              

Welfare Rights Officer, Notts County Council
Member since
27th Mar 2008

RE: ESA and Appeals - DMG 07/10
Tue 01-Jun-10 03:59 PM

May I resurrect this thread as 28 June 2010 is approaching!

A debate has been raging in our office all afternoon regarding what will and will not change from 28 June.

pclc, yes I think you are right regarding the situation before the amendment.

I think the amendment still means that the award paid after the appeal is made is a separate award. But that no assessment has to be made on this new award until the tribunal makes a decision (I think this is in the new 147A(2)).

Our local DMs are of the opinion that these new regs will put an end to the endless circular appealing (losing the appeal, but then appealing the subsequent decision to end the second award that started after the initial appeal). But I can’t find this in this reg.

Any opinions or other ideas about what will or will not change?

  

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andyp4
                              

Welfare Benefits Advisor, South Somerset District Council (Yeovil)
Member since
16th Jul 2007

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 01:48 PM

On a similar vein to the original posting and having reread DMG 07/10 more times than i would like for the sake of my sanity.

We've got a client who missed a WCA because she hadn't received the appointment letter (her post goes via a convenience store that then forwards post to flats above it) and found to have LCW, she claimed JSA and then appealed decision. JCP didn't produce a written response and appeal remained in asuspend state of limbo for 4 - 5 months.

She came to us and we put in an interloctory application on her behalf direct to the Tribunal Service requesting a Judge issue directions to JCP to produce a written response, Judge agreed and no sooner than JCP receiving directions they lapsed appeal and paid arrears offset against JSA payments, but didn't reinstate ESA. JSA still being paid.

Client told by JCP that she has to close JSA and make a rapid reclaim for ESA, it can't be reinstated otherwise.

Reading DMG 07/10 as well as the postings above appear to suggest she has to reclaim ESA and assessment phase starts all over again as well.

Please tell me i've got it all horribly wrong and i'm just another confused welf, or things have subsequently been put right on a fair equitable basis.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 03:28 PM

Wed 09-Jun-10 03:29 PM by nevip

The Department is maintaining that it will do nothing unless the claimant ‘closes his claim’. I hate the sloppy use of language that some DWP officers use. His claim cannot be closed because once a decision is made on it the claim ceases to subsist under section 8(2)(a) of the Social Security Act 1998. The Department has an extant decision that the claimant is once again entitled to ESA because he has limited capability for work.

Notwithstanding the provisions of reg 31 of the ESA Regs (claimant who claims JSA to be treated as not having limited capability for work) the Department can reasonably conclude that the claimant is not available for work and must, of its own volition, supersede the awarding JSA decision without delay or stand accused of maladministration. It might be incumbent on it, although I doubt it because of pursuit of the appeal, to contact him to see which benefit he’d rather be on but that is a different matter.

The troublesome thing for me is that there are now two separate periods of limited capability for work and if these are separated by more than twelve weeks then the claimant goes right back to the beginning of the assessment phase.

  

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andyp4
                              

Welfare Benefits Advisor, South Somerset District Council (Yeovil)
Member since
16th Jul 2007

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 03:52 PM

Thanks Paul!

If you're ever in Somerset or Dorset i'll buy you a cream tea or Dorset apple cake. Oh back to ESAdom!

Firstly She wants to claim ESA, so going back to the first paragraph of your posting, i'm i right in thinking that your interpretation is basically JCP should stop fannying around and reinstate the ESA.

Secondly, yeah the two separate period of LCW are separated by more than 12 weeks so errrrrrrrrrrrrrrrrr back to the beginning of the assessment phase.

I think i'm going to push this one via the MP who referred client to us (for the BDC in question its seems to be the best tactic rather than attempting to reason with the relevant sections)

Andy

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 03:56 PM

Hi Andy

Can I have an apple cake cake AND clotted cream please, pretty please.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 04:04 PM

"i'm i right in thinking that your interpretation is basically JCP should stop fannying around and reinstate the ESA".

In short, yes.

  

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andyp4
                              

Welfare Benefits Advisor, South Somerset District Council (Yeovil)
Member since
16th Jul 2007

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 04:06 PM

Only if its Cornish clotted cream! Otherwise no problem.

  

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pete c
                              

Welfare Rights Officer, Adult Social Care, Cornwall County Council, Truro
Member since
30th Oct 2008

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 04:15 PM

The provisions of Reg 31 have produced some unexpected results following a successful appeal. My client failed the WCA and appealed but claimed JSA while the appeal was pending instead of staying on ESA at the assessment rate.

When the appeal was won the DWP would not backdate the extra £25.50 WR Activity component for any week while the claimant was recieving JSA but did decide to pay it (and the rest of the ESA) from some point after the appeal was heard. When challenged they cited Reg31 and said that the only way to change this was for a JSA decsion maker to decide that the client did not in fact have any realistic prospect of working when they were on JSA.

This seems to fly in the face of previous practices with IB appeals and JSA but I can reluctantly see how it might fit with Reg 31. The posting above seems to indicate that the decision that a claimant was unfit for work should inevitably lead to a retrospective revison of the JSA claim -is that the case, has anyone known of this to happen?

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 04:42 PM

Pete

I did not say that a retrospective revision of the JSA awarding decision should be made as there are no grounds to revise. I said that a supersession decision should be made (it would be based on a change of circs, i.e. a finding of having limited capability for work) effective from the date of change.

Regards
Paul

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA and Appeals - DMG 07/10
Wed 09-Jun-10 04:45 PM

Wed 09-Jun-10 04:47 PM by nevip

And there is a similar provision to reg 31 for ICB, reg 17A of the Incapacity for Work Regs

  

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