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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

JCP claiming claim for ESA-C only

CDV Adviser
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Nestor Financial Group Ltd

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My client’s deputy claimed ESA in May 2015. A new claim was made in January 2016 for ESA-IR but refused. I have managed to get the claim backdated to January 2016 but the DWP are refusing to pay the previous claim as they state the claim was for conts only. They don’t appear to have any evidence of this as the cover sheet from the call doesn’t state anything and the voice recording has been deleted.

I vaguely to recall a decision from 2014 that a claim to ESA should consider both types. Has anyone had any luck getting the DWP to pay in this situation?

Out of interest, I have sent 2 letters requesting information and 5 complaint letters to get to this point. I’m still waiting for a formal response from DWP and ICE are refusing to accept a referral until the DWP have responded, even when they didn’t respond to the first 4 complaints.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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A couple of relevant cases:

CE/4181/2013
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4349

CE/277/2014
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4566

Do you not have any decision refusing to pay the contested ESA that is possibly in scope to MR/appeal (can be up to 12 months late)?

CDV Adviser
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Nestor Financial Group Ltd

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Thanks Jon. The original decision was December 15 so well out of time.

Stainsby
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Welfare rights adviser - Plumstead Community Law Centre

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It is well established that a new claim can be treated as an application for revision or supersession of an earlier decision (see for example CIS/701/1993, R(SB)9/84, R(I)11/62) Thus the January 2016 “claim” can be treated as just such an application.

Appeals are against outcome decisions and not necessarily against any specific determination embodied in that decision (see CH/2391/2015, CH/3343/2012, CIS/0384/2010)

Any determinations embodied in previous decisions are not conclusive for determining a later decision unless it ia prescribed determination such as a WCA decision that is prescribed by Regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999

The net result is that it is arguable that you could be able to appeal the latest decision on the effective date for the award of ESA IR and argue that the purported 2016 “claim” was nothing of the sort.  It was an application for revision.

Furthermore it may not have been a claim solely because ESA is a single benefit and in the absence of evidence that the claimant had waived the necessity for the income related element to be determined, that element must be determined from the time of the original claim

[ Edited: 17 Nov 2017 at 07:08 pm by Stainsby ]