Hi all, I'm slowly getting my head around ESA but I'm not entirely sure about this query from a client.

Claim is made to ESA, and client gets DLA at MRC and gets his SDP. Of course, no DP is available on ESA. Medical assessment doesn't happen until 33 weeks after claim and client is found to be fit for work. He's appealing but points out that if the assessment had been carried out within the first 13 weeks as it is supposed to be and he was disallowed, he would have had the option of claiming JSA (or in theory IS through some alternative entitlement route) and getting the same amount as he's been getting on ESA but with a DP on top of it.

I think he has a point but the only remedy I can see is an ex gratia payment in light of the amount of delay in having the medical assessment done?

A good point and I think your conclusion is correct. There does not appear to be a requirment that the assessment phase take no more than 13 weeks although the terms of reg 4 (the end of the assessment phase) are a little confusing.

Ex-gratia payment could be a possibility, but if the appeal is successful, unnecessary. Either way, I would certainly be suggesting a complaint regarding the delay.

A possible complicating factor is the fact that someone is treated as having limited capability for work when appealing and hence entitled to ESA which means no JSA. So, if your client had claimed JSA when he failed the LCW assessment, he could not have appealed against the decision on the LCW, which would only be the preferred route if he is certain a tribunal would not overturn the ESA decision, which in turn means he is losing out now by appealing. I realise this sounds confusing, but the conclusion for me is that this is a catch 22 situation and the DWP are unlikely to accept that any loss is due to delay.

Cheers Tony for the help. It looks like there's a potential problem with Reg 30 and Reg 31 of the ESA Regs. As you say someone who is appealing an ESA decision is treated as having LCW and can't therefore claim JSA. Reg 31 is almost the converse as it states that if someone claims JSA and has a reasonable prospect of getting employment, then they will not have LCW. So it looks like a claimant couldn't do both (unless there's an argument that the person claiming JSA doesn't have a reasonable prospect of success due to their medical condition but then if appealing a ESA decision, they are treated as having LCW and so won't be entitled to JSA?)

The CPAG handbook suggests that it is understood that if a person claims JSA while appealing ESA and wins the appeal, then they will be entitled again to ESA. (pg 165-166) Doesn't give a legislative reference, which is presumably why it states "it is understood".

OK, I'm confused!

I agree. In respect of the latter point, I would have thought that, the earlier point not withstanding, it would be simple matter of superseding the JSA awarding decision and offsetting the arrears of ESA when the failed LCW decision is revised. That would be no different from PCA appeals where claimants claim JSA or IS and then win thier appeals. I don't know why the CPAG author is uncertain in that case.

You got the point I was making about claiming JSA when appealing ESA. To be honest, I only thought of it when looking at reg 30 to reply to your post and I wasn't entirely sure that I had got it myself!!

Anyone else have any thoughts on the subject?