Forum Home → Discussion → Work capability issues and ESA → Thread
Mandatory Reconsiderations ESA needing to claim JSA
Hmm, interesting - just received a decision notice dated 1 November with no mention of mandatory reconsideration.. It’s a right to reside decision refusing income related ESA (as a top up). We will almost definitely be appealing.
The appointee in this case had a phone call today from the Saltcoats EU decision maker who said they were treating the appeal as a request for a mandatory recon. Which I sort of expected. Much as I want to rush to explain to them that their decision notice was not in the correct form for MR to apply, I am holding off for the time being as he also indicated that if the appointee provided certain evidence he would revise the decision in the claimant’s favour and I don’t want to p*** him off just yet..
esther mcvey confirms that esa can be backdated to cover mandatory consideration period once appeal is made -
‘Jonathan Ashworth: To ask the Secretary of State for Work and Pensions what his Department’s plans are to support employment and support allowance (ESA) claimants whose work capability assessments are being reconsidered, but who are unable to claim ESA during the reconsideration or appeal period. [179968]
Esther McVey: ESA is not payable while a decision that a claimant does not have limited capability for work (following a work capability assessment) is being reconsidered. During this period, the claimant may choose to claim an alternative income replacement benefit such as jobseeker’s allowance or income support. However, they must satisfy the entitlement criteria.
Following the completion of mandatory reconsideration of the decision, if the claimant subsequently appeals then ESA may be paid at the assessment phase rate pending the appeal being heard. Provided medical evidence is provided, this payment can cover the period while reconsideration was carried out but entitlement cannot be assessed until the claimant has lodged an appeal.’
here’s a link to yesterday’s hansard -
Great that ESA can be reinstated as soon as appeal can be lodged and backdated. Can someone advise if ESA that was contribution based continues to be paid (at assessment rate) on cb basis and not income related whilst awaiting appeal hearing. Letters seem to advise this (although I have one such case which then deducted a £20 weekly pension). Further complicated if appeal lost, a new claim made on same condition as over 6 months from decision appealed, ESA starts to be paid again, does it continue to be CB or is it IR? Golly that all sounds complicated, so hope someone understands and can help.
Great that ESA can be reinstated as soon as appeal can be lodged and backdated.
I am still confused as to how they can do this? And will the backdated ESA include an amount for any JSA lost through being sanctioned in the MR period where someone for example has not been able to keep up with their JSAg/CC?
Can someone advise if ESA that was contribution based continues to be paid (at assessment rate) on cb basis and not income related whilst awaiting appeal hearing.
This would continue as CBESA and the clock would continue to count down for the max 365 days of CBESA - so depeneding on how long someone had already been on CBESA during the appeal process their CBESA may end - and potentially they might be able to claim IBESA, or not - if they have too much income/capital/full-time working partner for example.
Not sure why pension would be deducted from CBESA when its £20pw - or was that the amount of the deduction, due to it being an occupational pension paid at over £85pw? That would attract a deduction from CBESA.
Further complicated if appeal lost, a new claim made on same condition as over 6 months from decision appealed, ESA starts to be paid again, does it continue to be CB or is it IR?
Its a new claim at that point if the tribunal have decided that the last claim ended because they failed the WCA. A new claim at that point will be based on the current benefit year and relevant tax years that are used to determine the NI contributions for the CBESA. If claimant does not have the necessary contributions then their claim will either be IBESA or just for credits.
esther mcvey confirms that esa can be backdated to cover mandatory consideration period once appeal is made -
‘Jonathan Ashworth: To ask the Secretary of State for Work and Pensions what his Department’s plans are to support employment and support allowance (ESA) claimants whose work capability assessments are being reconsidered, but who are unable to claim ESA during the reconsideration or appeal period. [179968]
Esther McVey: ESA is not payable while a decision that a claimant does not have limited capability for work (following a work capability assessment) is being reconsidered. During this period, the claimant may choose to claim an alternative income replacement benefit such as jobseeker’s allowance or income support. However, they must satisfy the entitlement criteria.
Following the completion of mandatory reconsideration of the decision, if the claimant subsequently appeals then ESA may be paid at the assessment phase rate pending the appeal being heard. Provided medical evidence is provided, this payment can cover the period while reconsideration was carried out but entitlement cannot be assessed until the claimant has lodged an appeal.’
here’s a link to yesterday’s hansard -
Welcome to the DWP fruit machine:
Of course McVey does not explain what the claimant is supposed to live on if the MR takes more than 14 days (her statement of 26/11/13) - even assuming HMCTS could register the subsequent appeal and inform DWP immediately.
So its still a gamble - should the claimant wait and see how long it takes to conduct the MR and for HMCTS to administer the subsequent appeal - or claim JSA meantime.
You pays (lives without) your money and takes your choice!
Can someone advise if ESA is paid during appeal (and backdated to cover recon period) can it include an addition for a partner or is it paid at single ESA assessment rate? If not paid to reflect a couple, what can be claimed. In my case they previously had £112.55, appeal lodged prior to October, now getting £71.70.
Sorry for the delay in responding to your requests for a copy of our questions to DWP on mandatory revison and WCA’s - I have been afflicted with a dose of A/L.
Hopefully the doc is attached!
Please post further issues you have thought of. I will post the DWPs response if/when recieved.
We have now received a detailed response from IDS (see post 44 above). I have posted a copy as a new thread.
here’s the new thread .... http://www.rightsnet.org.uk/forums/viewthread/5730