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Existing ESA appeal and fresh claim due to deterioration
Forgive me if the answers to this are on another post…
Client is awaiting ESA appeal having failed WCA in January 2010. Her condition has worsened so we made a fresh claim due to this. She got a confusing letter from ESA so I called them to check what their version was.
At first they said that because this was a claim for deterioration her current claim (pending the appeal) would cease ( if she wanted to continue with the fresh claim) and she would not be paid at all pending a new WCA.
Then they said that, because the claim for deterioration was made more than 6 months after failing the first WCA, it could be treated as a fresh claim (and not one because of deterioration) - hence she could be paid straightaway on the new claim pending a new WCA - but she would have to withdraw her appeal first!
Is any of this correct - if so or not, can anyone point me in the right directions for the Regs involved?
Arggghh…..!
Is she still getting ESA payments until her appeal from the original decision is heard?
If so, why put in a new claim?
A new claim is not required since there is a claim already up and running: you cannot claim something you have already been awarded and there is no need to. They cannot end the current award unless there are grounds for supersession / revision. Since the current award is based on being treated as having a limited capacity whilst appealing this would need something like withdrawal of appeal but could include other things such as turning pension age or ceasing to have a right to reside (for income based).
The client could withdraw the appeal and make a new claim but there does not seem to be anything particular to be gained from the clients point of view and they could potentially lose out on the appeal ‘winnings’.
What they have received is a bit of paper with information about deterioration in the condition: notification of a change in circumstances. If they accept that there is a deterioration in the condition the client can be put through the PCA again – reg 147A(3)(b). If they are still considered not to have LCW, they can continue to receive ESA as a person treated as LCW waiting for an appeal to be heard –reg 147A(4). If they get through the WCA and are found to have LCW then their appeal would be about a closed period.
Probably the most straightforward way to deal with it is to direct the DM first to para 39 of Memo DMG 33/10 which tells them that if they get a new claim in these circumstances the claim cannot be decided but the DM should consider whether it shows a deterioration or new condition. Next direct them to para 45 which states that if the condition has ‘significantly worsened’ they should be referred for a new WCA. The memo is on the DWP website.
Thanks for the replies - just to confirm she is getting ESA pending the appeal.
I understand the point about the revision/ supersession, and hence why they were asking her to withdraw the appeal. The difficulty is weighing up the loss to her thru withdrawing the appeal, rather than continuing for god knows how many months in waiting - if she did win then obviously she would get the WRAC backdated. But this is not a clear cut case (they rarely are).
She is more likely to pass a WCA now than she was back in January, due to deterioration - so its a gamble isn’t it? Also she cannot decide what to do, due to her mental health, so I as her advisor am being asked to effectively make the decision for her.
Just for the record - if the claim were one of deterioration made within 6 months of failing a PCA, are ESA right in saying the claim whilst awaiting an appeal would end but that she would not be paid until she attends a new WCA? How many clients could afford to wait for weeks if ESA were their only income (like this one)?
Sorry I think my reply was too waffly to be clear.
She does not need to withdraw the claim or make any other gamble to get the opportunity to be receiving benefit based on her new condition. Once the JC+ are notified of a change in her condition they are obliged to determine whether this amounts to a significant deterioration in the condition. If it does they are obliged to put her through a new WCA. Whilst this happens her entitlement to ESA continues. If she is found not to have LCW after the WCA she can continue to receive benefit as before and if she is found to have LCW her appeal would then be about a closed period.
The memo 33/10 puts it pretty clearly:
Change of Circumstances
45 Where
1. the claimant suffers from some specific disease or bodily or mental disablement from which they were not suffering when their entitlement began or
2. a disease or bodily or mental disablement from which the claimant was suffering has significantly worsened
they should be refered for the WCA as normal even though the appeal has not been heard
I think if you direct them to this you should have no problems getting it sorted.
Thanks very much - have you got a link to the memo?
Here it is
Damian - thanks.
I have checked Para 45 as you suggested - the problem is that they are saying she is welcome to continue with her appeal and fresh claim due to deterioration - they just wont pay her on the new claim until she has had a new WCA. Is this right?
Just a quick update - ESA have agreed to accept the fresh claim on grounds of deterioration and pay on this claim pending a new WCA. They have also agreed that we do not have to with draw the original appeal.