Can anyone help? I have a client who missed her medical for ESA WCA and is appealing on the grounds that she did have good cause. DWP have said she doesn't and is therefore treated as not having LCW and the case is with the Tribunal Service waiting for listing.

I believe that pending the appeal the client should be treated as having limited capability for work and the assessment phase rate paid (as it is when pending appeal due to failing WCA). I think this is dealt with under Reg 30(1)(c) of the ESA Regs - until it is finally determined that there is not good cause for failure to attend she is treated as having LCW. This is comparable to Reg 30(1)(a) which does the same for someone pending an appeal for failing WCA.

The appeals section at our DWP assure me that the decision maker has made the final decision about no good cause (despite the fact that appeal process not yet exhausted) and therefore she can't be paid. The woman at the DWP also assured me that this is the way it is done all over the country.

So what I want to know please is:

1) has anyone else got an appeal pending for failure to attend and are they being paid assessment phase rate?

2) is my reading of the legislation correct or have i got it all pear-shaped?

I'm about to get on my high horse with the DWP and would like to double check I'm right to avoid looking like a complete ass!

Any advice appreciated - ta!

I have a client who FTA medical in November, she approached us in feb about it after having no income since november. I lodged a late appeal against the decision in november, and advised the client to make a new claim for ESA in the meantime. The new claim has been awarded ESA at assessment rate, no problems. So maybe your client should try putting in a new claim, whilst you argue the toss over whether the old claim should be paid pending the appeal. Hope this helps, although it doesn't really answer your question, at least it may get your client some income in the meantime.

Reg 6 of the ESA regs.

The assessment phase – claimants appealing against a decision

6. Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(72).

reg 23 of the ESA regs

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work
23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination listed in paragraph (1), the claimant is to be treated as not having limited capability for work.

(3) Paragraph (2) does not apply unless written notice of the time and place for the examination was sent to the claimant at least 7 days in advance, or unless that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

Therefore if a claimant fails to attend a medical they are treated as not having limited capability for work. Thus if an appeal is made then reg 6 kicks in and ESA must be paid pending an appeal.

And your local processing office is wrong, it is not done like their way all over the country because our office pays ESA pending such appeals.

I suspect they are getting confused with the rules concerning IB/IS claims, where reduced rate IS is definately not payable pending a failure to atend a medical appeal.

I suggest getting in touch with the Processing office manager or ESA manager to sort this out.

If they refuse, then consider a Judicial Review.

I think that the position is exactly the same as that applying in IB/IS cases: "a determination that that claimant does not have limited capability for work" does not include the deeming provisions of regulations 22 and 23. In those cases no decision has been made as to the ACTUAL capability for work has been made. It is more in the way of a sanction for failure to comply. These people are treated as capable of work irrespective of their actual medical condition.

Hi Daphne,

I don't think you should get on that horse just yet...

Effectively the thing which allows a person appealing against a decision that they have failed the LCW test is Reg 30(3) of the ESA Regs which disapplies the rule in Reg 30(2)(b) that they cannot be so treated if they have been found capable of work under (or are treated as capable under Reg 22 or 23- failure to do the ESA50 or attend the medical respectively) within the last six months unless new health problem or significantly worse etc.

Looking at Reg 30(2) it is worded to apply to "a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work....."

Then looking at Reg 30(1) and comparing (a) and (c) we see the full wording of (a) is:

until such time as it is determined (a) whether or not the claimant has limited capability for work

until such time as it is determined (c) whether the claimant falls to be treated as not having limited capability for work in accordance with regulation <....> 23 (failure to attend medical examination....

Sorry Ariadne- just realised you made the same point a day before me....

Hi guys

I really don't think Reg 30 applies in this case. Reg 30 is concerned with "Conditions for treating a claimant as having LCW UNTIL a determination about LCW has been made".

In the case of clients who FTA a medical a determination has already been made re their capability for work under reg 23(2) where it states "where a claimant fails without good cause to attend for or submit to an examination listed in paragraph 1 THE CLAIMANT IS TO BE TREATED AS NOT HAVING LCW". So the decision is made here.

Therefore, when the client appeals, he falls under reg 6: "where the period for which the claimant is entitled to ESA commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant DOES NOT HAVE LCW, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal".

Seems clear as day to me!!!

.

My view is that they cannot claim the assessment rate pending an appeal regarding FTA.

There is a clear difference between a determination that somebody has limited capability for work and them being treated as having no LCW. Where somebody misses a medical without good cause the decision maker does not make a decision as to whether or not they have LCW they 1. make a decision as to whether the person attended the medical and 2. whether they have provided good cause for not attending. If the answer to both these questions are no then they are to be "treated as having limited capability for work". No determination or decision has been made as to whether they actually have LCW.

It's similar to the conclusive presumption that a person does not have LCW if they do work which for whatever reason does not count as exempt work. If, for example, they work on into week 53 of a spell of work which for 52 weeks has clearly been permitted work, they suddenly go from being considered to have LCW to being conclusively presumed not to have LCW. Nobody has assessed their actual capability for work, it just happens by operation of law.

well first day back in work since i posted that so very helpful to read all the different advice - even if it is conflicting!

i am persuaded by your argument martin - i had read 30(3) where it says 'is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work' as including decisions where claimant is treated as not having LCW but I am persuaded now that it doesn't otherwise it would specify. And it is the same wording in Reg 6.

however, interesting that DWP in Wirral is paying in such circumstances?

Thank you all for help