ESA 6 month rule and failed WCA

Hi,

I have a client who re-claimed ESA within 6 months of the previous claim ending, so he therefore wasn’t paid ESA until he went for the medical assessment - fair enough, I dont think the decision was correct as it was a new issue, so I will be looking into that separately. He has now been sent for a WCA and failed.

My question is, if he submits an appeal will the DWP pay him from when they recieve his appeal, or will they pay him the backdated money from the beginning of the claim? If they don’t award any backdating and he subsequently fails at Tribunal, then he will have gone 13 weeks or so without any payment and no prospect of payment for that period.

Do you think that he will recieve backdating when he puts the GL24 form in for tjhose 13 weeks? I can’t find the answer.

Thank you in advance!!

They would normally only be paid from the first day after the last day of previous entitlement that’s under appeal - so in your client’s case they wouldn’t get the money for the period from claim to decision unless they win the appeal:
http://www.cpag.org.uk/cro/wrb/wrb216/ESA_appeals.htm

Your post doesn’t say why his previous claim ended but we’ll assume it was because he failed a WCA (WCA1).  Without a new or significantly worsened condition payment of ESA on a new claim cannot be considered until either six months have elapsed since WCA1 or until he is re-assessed under a new WCA (WCA2), whichever is the earlier.  See CIB/3106/2003 which remains good law for ESA.  The DWP in my experience, however, often get this wrong and maintain that ESA cannot be paid until the person is re-assessed, even if the six months have elapsed. 

Eg, a claimant who:

i.  fails WCA1 on 8 Jan
ii.  re-claims ESA on 25 June
iii.  fails WCA2 on 19 Sept

should be paid ESA from 8 July (ie, 6 months after WCA1) until 19 Sept (ie the date he fails WCA2).  He could then appeal WCA2 and claim ESA afresh from 20 Sept.  As you can see, his only penalty for re-claiming ESA within 6 months should be a refusal of payment between 25 June – 7 July. 

In the above example, the DWP’s erroneous approach means he loses out on ESA from 8 July – 19 Sept.  If he wins his appeal against WCA2 then he gets this money back.  But if he loses the appeal, the tribunal must nevertheless award him this money provided he raises it as an issue.  That’s because the tribunal stands in the DM’s shoes and is bound by CIB/3106/2003.

Benefit advisor, it wasn’t clear from your post whether your client had lost out in the above way, but it appeared he might have done.

Secondly, you suggest possibly challenging the decision on the new ESA claim on the basis that there was a “new issue”.  Do you mean a new medical condition?  If so, you may wish to look at CIB/245/2009, in particular the directions at para 10 which Judge Turnbull gives to the new tribunal to which he is remitting the case.  He basically directs the tribunal in the event of it again dismissing the appellant’s substantive appeal against a failed PCA, to decide whether his condition had nonetheless significantly worsened.  That would allow the appellant to return to the UT for a ruling on whether his new IB claim should have escaped the 6 months’ rule whilst he was waiting to be re-assessed under the PCA, and in spite of his subsequently failing that re-assessment.

Applying CIB/245/2009 to your client’s case, if he loses his substantive WCA2 appeal, he should still ask his tribunal to find whether he had a new medical condition at the date of his new ESA claim.  An affirmative answer would allow him to be paid for any portion of his new claim that would otherwise have been caught by the 6 months’ rule, ie 25 June – 7 July in my above example.  If his tribunal does accept that there was a new condition, I’d ask it to state in its decision notice that the client is entitled to ESA from the date of the new claim and let the DWP take it to the UT if they wish.  Note, that the tribunal is not strictly bound by CIB/245/2009 to decide whether he had a new condition.  That’s because Judge Turnbull’s above comments were obiter, ie they did not form part of his main decision.  However, you could attempt to appeal if the tribunal refused outright to consider the issue. 

Thirdly, why not try late appealing the original ESA decision?  If the appeal was accepted, he could claim ESA from potentially the day after he was originally taken off.  He’d need sicknotes backdated to then of course.  Again we’re assuming he originally failed a WCA rather than, say, failing to attend a medical.

Fourthly, if your client’s original WCA (ie WCA1) terminated a new ESA award, it’s arguable that his ESA re-claim escapes the 6 months’ rule.  That’s because the rule affects only those re-claims made within 6 months of a previous “entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work” - see Reg 30(2)(b).  Well, the previous entitlement for most new claimants (ie the one ended by WCA1) is “dependent” on their being ‘treated’ under Reg 30(1) as having LCW until assessed under the WCA, rather than their actually having LCW.  Consequently, I think it would be necessary to read into Reg 30(2)(b) the word “continued” immediately before the word “entitlement” in order to catch those claimants who subsequently re-claim within 6 months of an ESA award which was itself a new award.  Your client’s tribunal which hears his WCA2 appeal is standing in the shoes of the DM who decided whether his ESA re-claim was payable and from when.  So you could test this argument out with it.  The tribunal is not just deciding whether he passes the WCA.

As an aside, even with such a purposive construction of 30(2)(b) as above, what about those claimants who had an existing ESA award, as opposed to a new award, based on, say, being a substantial risk under Reg 29?  Such an award was quite clearly not “dependent” on their having LCW because Reg 29 requires a positive finding that they are not LCW.  So when such an award is ended by WCA1, those claimants appear to be able to re-claim at any time should they not appeal their failed WCA1.

Finally, I think there may be a loophole in the law at the moment that allows most people to escape the 6 months’ rule.  It’s due to the inclusion of the word “or” between Reg 30(2)(b) and (c) ESA Regs.  The effect of Reg 30(1) is that you can be treated as having LCW until you are assessed under the WCA provided you satisfy the conditions in Reg 30(2).  The scheme of Reg 30(2) is that you must satisfy para (a) and either (b) or (c).  I think your client would probably satisfy (a) and (c) and, therefore, satisfy Reg 30(1).  Have a look.  But I could be wrong.

Sorry for the length of this post by the way.

Sorry I should have clarified, the client did fail WCA1 which resulted in the claim ending. He didn’t appeal within the given time frame and doesn’t have any grounds for a late appeal as far as I can see.

He is still within 6 months of the previous claim ending so unfortunately I dont think there’s anything to go on there - although that will be handy to look out for in other cases!

I do think that the client’s health had deteriorated and therefore he should have been exempt from the 6 month rule, but his GP seems very uncooperative so i’m not expecting any greatly supportive medical evidence.

If the DWP refuse to accept that the client’s health had deteriorated, then I will try and argue your fourth point; his previous claim was teminated at WCA stage, so he was never actually determined as having LCW (I’m just re-capping to confirm that I’ve got it right), he was only “treated as having LCW” while awaiting a WCA.

Other than the fourth point you made, would you say that all other options are dependent on the client appealing the WCA2 decision? He is thinking of giving up on ESA and claiming JSA instead.

Thanks for both responses!!

Yes, he’s much less likely to get anywhere unless he goes to tribunal on these points.  The DM would have been unlikely to accept even point 1, had it applied here, so it would be a miracle if they accepted point 4.  But good luck.  Sometimes, just sometimes, you get a DM who doesn’t require much in order to have no objections to a late appeal.

My client failed a WCA in September and didn’t appeal. She has made a new ESA claim and will almost certainly fail the WCA on her second claim before six months have elapsed since the previous WCA decision. If that happens, I guess a) that she will forfeit the right to re-qualify for benefit from 6 months after the original WCA decision and will have to wait until 6 months after the second WCA decision (or an earlier deterioration in her condition) to claim again, and b) that even if she appeals the second WCA decision she will get nothing pending the appeal (having had nothing before the appeal was made).  Is that right and if it is would it be advisable for my client to withdraw her recent claim before a decision is made, to regain the right to re-qualify for benefit on a new claim from 6 months after the September WCA decision?

Just to check I’ve got this right.  There has not yet been a decision on the new claim which she made following the Sept WCA (WCA1).  That’s because the DM is waiting for the outcome of a new WCA (WCA2) which you think the client will fail again.  The date of WCA2 is likely to be within 6 months of WCA1.

If she fails WCA2, appeals it and provides a sick note, she can be paid ESA from the day after WCA2.  That’s because her appeal would have the effect of disregarding WCA1 and WCA2 for the purpose of the 6 months’ rule – see Reg 30(3) ESA Regs.  And it would not be necessary to complete a new claim form in order to make this new claim – see Reg 3(j) Claims and Payments Regs.

If the tribunal subsequently upholds the result of WCA2, you could rely on points 4 or 5 of my above post to argue that it should nonetheless award ESA from the date of claim, despite that date being within 6 months of WCA1, until the day before WCA2.

On point 5 in particular, I posted a few weeks back about the blue volumes having not reproduced the word “or” between Reg 30(2)(b) and (c) ESA Regs.  I checked the volumes again a couple of days ago and see that they now have put the “or” in its rightful place in order to comply with Reg 9(8) of SI 2010/840.

Sorry for delay in responding to your last posting. So if my client (who made a repeat ESA claim within 6 months of a previous unsuccessful WCA) fails the WCA on her repeat claim and appeals, what does she have to do to succeed at appeal? Does she simply have to satisfy the tribunal that she satisfies the second WCA or does she also have to make a case that her condition had deteriorated significantly between the date of the first WCA and the date of her second claim?

To succeed at tribunal she just has to satisfy the WCA.  What I was saying earlier was that if she loses that tribunal (ie the tribunal uphold WCA2) she could ask the tribunal to nevertheless award ESA from the date of her 2nd claim until the date of the decision under appeal, ie WCA2, based upon certain arguments I’d mentioned in my first post.  That’s all.