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6 months since negative ESA entitlement determination
Query on Reg 30. Client failed WCA on 16/9/09. Appealed and continued to receive ESA assessment phase rate whilst appeal ongoing. Appeal heard 3/9/10 and was unsuccessful. ESA payments stopped. Client has attemped to make new ESA claim (GP still issuing med certs) but was told he couldn’t as he is within 6 months of negative determination. I am arguing that whilst he was able to receive payments of ESA under Reg 30 (3) until his appeal was heard, Reg 30 (2) (b) now applies- negative determination was on 16/9/09 and therefore client should be entitled to make (and be paid in respect of) a new claim on any grounds (no need to show deterioration or new condition, etc) until such time as a new determination (usual WCA at week 13) is made. Howver, processing team is arguing that determination date is 3/9/10- date of the appeal hearing- and therefore new claim cannot be accepted until 3/3/11. I think I’m right but would invite second opinions…
...Answered my own question. Reg 147A seems to scupper my approach. Unless anyone thinks differently?
You are right. They are wrong.
Hi Tom,
Would be grateful for a little more info as to why you think I am right. As I say, I thought I was originally, but Reg 147A seems to me to indicate that determination date is date of appeal rather than date of original decision.
The 6 months does not run from the date of the tribunal decision because the tribunal merely upholds the original decision of 16/9/09. The authority for this is R(IB) 8/04.
The ESA at the basic rate that was being paid prior to the tribunal hearing has itself to be brought to an end. This is done by a determination under Reg 147A(5) dated the first day of the benefit week following the tribunal’s notification to the DWP of the unsuccessful appeal.
The 6 months for any new claim does not run from the date of the Reg 147A(5) determination either because Reg 30(2)(b) only catches determinations made under Regs 19, 22 or 23 of the ESA Regs, rather than one made under Reg147A(5).
The 6 months runs from 16/9/09 so there is no problem at all with a new claim now.
You could draw their attention to para 53 of Memo DMG 33/10, which essentially says the 6 months runs from the DMs original LCW decision not the later one following the tribunal. Example 2 ‘Amy’ is nice and clear about it. I think it is on the DWP site somewhere.
Whilst the guidance is nice and clear the regs have got me confused and I’m not sure they really fit with the guidance
The shift from reg 6 to reg 147A seems to do something weird. Reg 6 just said ‘right you’ve been determined to no have a LCW but you can stay in the assessment phase’. Reg 147A takes a different approach by apparently taking away a decision which has already been made. In order for the reg to apply a determination has to be made (para1) but para 2 then says a determination cannot be made until the tribunal makes a decision on appeal, and it is this absence of a determination which means the assessment phase does not end. Does this mean the determination is unmade only to be made again following the tribunal decision? Please tell me this is wrong!
[ Edited: 5 Oct 2010 at 12:19 pm by Damian ]The DWP’s legal team in Leeds must despair when they hear a local office interpreting the law in a way which is completely contrary to the guidance. If my experience, admittedly years ago, in a decision making capacity (not DWP I should add) is anything to go by, the problem is normally caused by a “senior” DM whose seniority is often based on length of service rather than any ability. They’ve often been there so long that spinning them a few times at Cern would probably reveal a new particle. Their view often contaminates the whole department especially, as is often the case, they also do the quality control of the other DMs.
Anyway, sorry, rant over. Reg 147A could have been drafted better. However, it’s clear to me that, aside from the odd reference to the original appeal, the regulation is dealing solely with the award of ESA pending the appeal.
Tony, that’s an admirably creative interpretation of Reg 147A(2), but I think the reference there to the “appeal being determined” simply means the appeal being decided, rather than a new determination of limited capability for work under Reg 19. Were that not the case, it would change the settled law that a tribunal looks up to the date of the original decision only, here 16/9/09. R(IB) 8/04, therefore, clearly remains good law for ESA in my view.
Damian, it’s an interesting point about the assessment phase. Reg 4 ESA Regs governs when the assessment phase ends for an award of ESA pending appeal. That’s by virtue of SI 2010/840 omitting Reg 6, and inserting a new Reg 5(4) preventing any linking between the original award of ESA and the award of ESA pending appeal.
Reg 4(2) ESA Regs is the only possible basis for the assessment phase of the ESA pending appeal not ending after 13 weeks and continuing, instead, until the appeal against the original decision is decided. Admittedly that requires interpreting “having been assessed in accordance with a limited capability for work assessment” in Reg 4(2)(a) as including someone who is being treated as having limited capability for work under Reg 30(1) while waiting for their appeal. Unfortunately, Reg 2(1) ESA does not appear to define “limited capability for work assessment” in those terms, however, Reg 19(1) refers to a limited capability for work assessment being determined “in accordance with this Part” which is Part 5 ESA Regs which does include Reg 30. Tortuous I know but otherwise no one at present claiming ESA while waiting for an appeal could be paid basic rate beyond 13 weeks (and it’s taking months up here as elsewhere to get a listing). This is the view on the assessment phase which the DWP take and also appears to be supported by the Welfare Rights Bulletin article supplied above by John.
The assessment phase for the award of ESA pending appeal ends when a limited capability for work determination is made for the purposes of Reg 4. That determination is made under Reg 147A(5) when the original appeal is unsuccessful as here. Reg 147A(5) does more than simply provide for the effective date of the end of the award of ESA pending appeal. It treats the claimant as not having LCW in the same way that Reg 22 or Reg 23 treats the person as not having LCW ,eg, for failing to attend a medical. The alternative would have been a determination that he does not have LCW under Reg 19 but that would have been an appealable decision, allowing the claimant to stay on ESA whilst waiting for his appeal against it. In other words, effectively stay on ESA indefinitely as was the case before 28/6/10.
The bit that the “senior” DM at the local office’s processing team doesn’t understand is that the DWP in Leeds want the Reg 147A(5) determination to be invisible for the 6 months rule. That’s precisely why they’ve omitted any reference to it in Reg 30(2)(b). But the DM concerned is just as likely to be using principles he used in the seventies let alone pre 28/6/10.
I’d complain. He/she has got to be answerable to someone.
[ Edited: 6 Oct 2010 at 03:01 pm by Tom H ]Thanks Tom- it’s all so much clearer now. Unfortunately, I think spinning me at Cern would definitely result in a few new particles…
I’m always chary of encouraging anyone at DWP to make decisions based on guidance. Guidance isn’t law and certainly isn’t always right: they can be too fond of citing it in support of wonky decisions as well as refusing to follow it in cases (like this one) where it is almost certainly right. That said, if it IS right they have no excuse at all for failing to follow it. But in any case where the regulations/staturtes/case law are at variance with guidance, the guidance must lose every time.
Tribunal judges aren’t impressed either by arguments based on guidance, especially from DWP. They want law.
You don’t say.
My feeling is that its a matter of using the right tools for the right situation.
A DM is not going to be impressed with a UT decision as much as the DMG.
The DM is employed by the DWP and not the Tribunals Service.
If the bit you want is in the guidance that the employer issues the employee to aid them in their job, I’m sure the DM will be persuaded more readily than by waving a decision at them.
Likewise if you’re before a tribunal going on about memo’s and guidance…......
Trouble is, realistically, by the time we’ve argued the toss (all roads probably lead to appeal) the 6 months (whenever they run from) will have long since elapsed. In the short term, have advised client to claim JSA so at least he will have some income.
There was a previous discussion about this issue called ‘re-claiming ESA’ started by efloyd. It is worth reading just to see the forensic examination of regs and evolution of thought Tom H has gone through. Respect.
[ Edited: 11 Oct 2010 at 05:24 pm by Darran ]LOL. I suppose that thread should come with a public health warning: Spend too much time reading about ESA and you risk ending up on it.
Just one thing still niggling me about this. In reg 5(4) and in reg 7(2) reference is made to a “period of limited capacity for work to which regulation 147A (2) applies until a determination of limited capability for work has been made following the determination of the appeal by the first-tier tribunal” Is there any significance to this reference to a determination following the tribunals determination?