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Failure to attend medical - new claim not paid pending medical - medical cancelled
Hi - any ideas on this.
Clt fails to attend medical without (as far as I can tell) good cause. Is treated as not having LCW.
Makes new ESA claim - unpaid pending medical - he attends assessment centre on Fri but they send him home as they run out of time (!).
New appt is 6 Dec 10 - no payment in meantime.
I think they are right?
So apart from complaining about ATOS in the hope that we can get him seen this week any other ideas?
you may wish to add that if they fail the rescheduled medical (which is for a new or worse condition) No ESA for SIX MONTHS from the failure to attend.
Only option being to sign on or get a new worsened/new condition.
They’ve given him an appt for tomorrow - now trying to hassle ESA to pull the ESA85 through asap to get a decision one way or another out of them so he can be paid or appeal and be paid.
They’ve given him an appt for tomorrow - now trying to hassle ESA to pull the ESA85 through asap to get a decision one way or another out of them so he can be paid or appeal and be paid.
If he fails the ESA medical he will not be able to get ESA at the assessment phase on appeal unless good cause is accepted
[ Edited: 2 Dec 2010 at 12:39 pm by John Birks ]Oh - I thought:
He had no good cause for not attending so there is no dispute that he was to be treated as not having LCW per 23(2) of ESA regs on the old claim.
He then makes a new claim and 30(2)(b) is engaged ie he can’t be treated as having LCW pending LCW determination as it’s not 6 months since it was determined that he be treated as not having LCW
But when he fails new exam (aren’t I the optimist?) and appeals, doesn’t 30(3) kick in to obviate 30(2)(b)?
Yes.
You may wish to consider reg 23 of the ESA regs and the commentary in the S&M at page 1031.
Failure to attend without good cause is in effect a six month ‘sanction.’
The commentary you refer to simply makes the point that someone who fails to attend a medical cannot be treated as having LCW under Reg 30 until they undergo a WCA. In the present case we’re assuming he undergoes that WCA and fails it. Then he can be treated as having LCW pending his appeal against that failure provided he submits sick notes. And be paid ESA.
Thanks guys - we’re still trying to get a new date for the medical. To their credit ATOS did arrange one for yesterday but this being the south coast we were unable to deal with the snow yesterday so clt couldn’t make it(!).
If (when) the refusal is issued I’ll let you know their response to the appeal….
My understanding is as follows.
If you have a decision that you did not attend without good cause then a reapplication can only be succesful after a WCA is carried out and you are determined to have LCfW.
You cannot be ‘treated as having LCfW’ whilst appealing as there has been a determination under reg 19 within the last six months “as not having LCfW.” Determination can be treated or actual.
Paragraph 3 (excluding 2b) only applies where there has been a medical and a determination that the claimant does not have a limited capability for work rather than in this case where he is ‘treated’ as having a LCfW. For the reg to apply the exclusion would have to include the words ‘...or is treated as not having LCfW.’
I’ve had experience of the situation before and the claimant did not get ESA on the second WCA after appealing.
Your local office may be different.
ESA regs 2008
Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made 30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having 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 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).
(2) The conditions are—
(b)that it has not, within the 6 months preceding the date of claim…..or is to be treated as not having limited capability for work under regulation 22 or 23 unless—
(i)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;
(ii)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened;
(3) Paragraph (2)(b) does not apply where 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 and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(1).
Obviously I’ll whack in an appeal anyway.
When clt fails the LCW doesn’t this produce a new determination, which is the one he appeals?
As the commentary notes on p1041 of S&M, para 3 deals with the situation where the appeal is against the determination that he doesn’t have LCW (not that he has been treated as if he doesn’t).
John, did you try appealing your case?
We haven’t appealled as yet as the decision is/was pending.
Client went on to claim JSA, which was better for her as it included the DP (for LRC DLA) and it meant actual money now rather than a ‘hope’ of some money in the future.
You would probably want to appeal both decisions, unless there is as you say no good cause. We didn’t have good cause as she told them she wouldn’t go to the medical.
Its a cleft stick as if you do go on to JSA then you risk not getting any arrears of ESA even if the tribunal is succesful. There is other guidance on this about.
In our case there would not have been much in the way of any arrears as the JSA + DP was more than the ESA she would get.
You might want to consider the Decision Makers Guide at 42203 for the DWPs version of the regulations.
Hi John
Guess we’ll have to agree to disagree.
For me, the effect of Reg 30(2)(b) being disapplied after someone appeals a decision that they do not have LCW, is to make both the Reg 19 determination (ie following the unsuccessful medical) and the Reg 23 determination (ie following the failure to attend) invisible for the purposes of the 6 months rule. With 30(2)(b) n/a, all that remains is for the client to satisfy Reg 30(2)(a) (ie the supply of sick notes) in order to be treated as having LCW and, it follows, to be paid ESA pending his above appeal.
Obviously, if the client’s better off on JSA all well and good.
Tom
[ Edited: 3 Dec 2010 at 03:57 pm by Tom H ]From my reading of the regs, 2(b) excludes clients who don’t attend a medical from claiming again within 6 months. Once another medical has taken place a determination is made regarding LCW. If the client then goes on to fail the WCA, 2(b) bites for two reasons: the client is treated as not having LCW and there has now been a determination that they do not have LCW. Once an appeal is made, para 3 kicks in and trumps 2(b) completely and therefore both reasons for being excluded from reclaiming are overridden.
I agree and so, apparently, does the commentary to the regulation in Sweet and Maxwell which is as follows:
“Paragraph (3) deals with the situation where a claimant is appealing a determination that he does not have limited capability for work. In this situation, supplying medical certificates evidencing limited capability for work will preserve the claimant’s position. He is to be treated under para. (1) as having limited capability for work until the appeal has been determined – “the last six months” provisions in para. (2)(b) do not apply (para.(3))”.
Hi John
Guess we’ll have to agree to disagree.
Tom
To be honest its not a matter of agreeing or disagreeing its a matter of practical solutions and someone else making a decision.
Sometimes the DWP pay ESA to clients who’ve been refused IB, sometimes they don’t. Sometimes they pay on appeal on 2nd claims, sometimes they don’t.
The DWP locally were intent on not paying and outlined their reasons in a letter to us as already expalined.
My brain hurts now. I have checked and we have other customers in the same position and I can see why its not 100% crystal clear either way.
Until some UT makes a decision I would not want to rely on a further application within six months unless the customer has an obviously new or worse condition (Ebola virus or broken leg) that was not evident at the original decison and will have to advise accordingly.