Welfare Benefits Case-Worker, Maidstone Citizens Advice, Kent Member since 02nd Nov 2004
hmmmmm ... indeed !? Thu 20-May-10 01:34 PM
longish time no queries fellow benefit advisers and i'm stroking my chin and scratching my head as i type this one, but here goes ...
i have a cl. who received notification letter from jcp dated 19/08/10 that he had failed limited capability for work assessment (lcwa). i assisted cl. with an unsuccessful appeal (although i am now examining whether we can appeal to the upper tribunal ?) and after 19/02/10 cl. reclaimed e.s.a on the same grounds as before 19/08/09.
this claim has been refused because jcp are stating that cl. has reclaimed e.s.a within 6 months of a decision that he did not have limited capability for work, and this is where i am confused ?
does the 6 month period begin from the date of the initial lcwa decision dated 19/08/10 or from the date jcp receive notification from the tribunal service that cl. appeal was unsuccessful ? i have spoken with a source at jcp who hyave stated it's the latter but i cannot see how this can be because the 6 month period would be, well ... all over the shop because of the varying times it can take for an appeal to be heard at tribunal ?
as ever, hope this has made sense and all that read this q. are tickityboo,
Welfare Rights Worker, Broadway (London) Member since 13th Jul 2004
RE: hmmmmm ... indeed !? Thu 20-May-10 02:51 PM
The 6 month period should start from the date of the original decision on 19/08/09 as the appeal hearing is in relation to this decision, regardless of when the appeal is heard.
I know that there was recently some issues with the DWP stating that if a claimant recieves ESA while appealing this was starting a new period of incapacity for work as they were treating this as a new claim with new med certificate however I believe that this was decided to be incorrect interpretation of the regs unless anyone else can clarify.
Welfare Rights Advisor, Wirral Welfare Rights Unit Member since 07th Sep 2009
RE: hmmmmm ... indeed !? Fri 21-May-10 11:53 AM
As far as we are aware, the DWP position is still that the ESA paid pending appeal is a new claim (which does not require a claim to be made under regulation 3(j) of the Claims and Payments Regulations). Their guidance was that, following a first tier tribunal decision, they should then go on to make another decision on that second claim, adopting the reasons and conclusions of the tribunal (presumably unless something material had occurred between the date of the original decision and the tribunal hearing). Therefore, the 6 months runs from the date of that DWP decision, made after the tribunal's decision. However, it too carries a right of appeal, so that payment can continue on yet another new claim so long as it is supproted by medical evidence. I have not had the time to analyse the law extensively on this, but the DM I spoke to said that, effectively, if the GP continued to sign someone off, s/he could stay on assessment rate ESA indefinitely so long as each decision is appealed.