ESA - 6 month rule and new claim

Happy new year all.

I’ve been trawling though the ESA threads but don’t seem to be able to find an answer to this one.

Client failed to attend medical 25th June 2011, new claim made September 2011, payment refused until medical carried out due to 6 month rule, delays mean still no medical yet and client surviving on money from family and crisis loans.

It has now been more than 6 months since the decision that they did not have LCW. Should a supersession be possible to allow payment pending assessment to begin from 25th December 2011? Decision maker currently says no and new claim needed which would allow payment to start, but which would end the current claim and medical assessment pending.

In respect of the above, if a supersession is possible, but anticipating a lengthy battle with the BDC to get them to accept this, an option that the client has is to make the new claim now to get the money coming in asap as they have nothing at the moment. To better understand the implications in terms of any lost backdated benefit, would ESA become payable just from the date that the medical was carried out (and if so, as the medical hasn’t been carried out yet she would be better off making a new claim now), or, if found to have LCW at the medical, would she otherwise be owed benefit from the date of new claim in September therefore losing out on benefit if she was to make the new claim now (that is if the advice about the current claim being ‘cancelled’ is correct, which I’m not sure if it is).

Thanks.

The DM treats the new ESA claim as subsisting until he is able to make a decision on it.  That is the correct approach.  He is also within his rights to delay making a decision on whether she “has” LCW until she attends a new medical (after all, she failed to attend the last one).  However, he must pay her from 25 Dec, ie when the 6 months are up and she still hasn’t been for a medical.  The authority is R(IB) 8/04 and CIB/3106/2003.

The DM is saying that the fact she made the new claim in Sept, ie within 6 months of the June decision, is not fatal should she pass the new WCA, in which case she would be paid from Sept.  That’s correct.  But he is saying that the Sept claim is fatal to her being “treated as having LCW” pending the new WCA.  R(IB)8/04 rejected this argument in the context of IB and it remains good law for ESA.  Applying R(IB)8/04, the Sept claim prior to a new WCA being sat is only fatal to payment for those days within the 6 months, ie upto and incl 24/12/11, not the days after.

I think if she follows the DM’s advice and makes a further new claim she would be paid from the date of that claim despite the fact that she is still unlikely to have sat the WCA by then.  The difference for the DM is that the new claim concerned is made after 25/12/11, ie after the 6 months have elapsed.  Pathetic I know given the above caselaw.  But I suspect you may have to go along with that if you want the client to be paid before she sits the WCA.  However, I would ask the DM to put in writing his decision refusing to pay ESA from 25/12/11 and appeal that. 

After making the new claim as suggested by DM, if she subsequently passed the WCA I think the DM would attempt to backdate ESA only to the date of the new claim.  However, there’d be nothing to stop you appealing that decision in order to challenge the date from which ESA was payable, though you’d have to provide a warning that the tribunal might (though I’d be amazed if they did) re-visit the WCA result itself.  You could then join that appeal with the above appeal against the refusal to pay from 25/12/11. That would ensure that arrears could be paid back to Sept 2011.  The same advice about joining the appeals also obviously applies if she fails the WCA following her making a new claim now.  That way, should the tribunal allow her appeal on the WCA it would similarly be able to consider arrears to Sept 2011.

Finally, it is worth appealing the decision refusing to pay from 25/12/11 irrespective of the above caselaw.  That’s because I have posted previously about there being a loophole in the currrent version of Reg 30 ESA Regs which allows a person to be paid ESA immediately on a new claim without being subject to any 6 months’ rule.  In your client’s case she satisfies Reg 30(2)(a) and (c) ESA Regs and, consequently, may be treated as having LCW under Reg 30(1) from Sept 2011, regardless of the outcome of the eventual WCA or whether she appeals that.

Thanks so much for this reply, really useful.