Amendment to ESA regs part 5?

Is anyone aware of any amendments being made to the original ESA regs 2008, part 5, 30 (2) (b), with reference to a client being excluded from being treated as having LCW and therefore being paid pending assessment, if they have been treated as having LCW within the last 6 months?

Specifically, my client was found to not have LCW June 2011 due to failure to attend medical without good cause, reclaimed in September, and would have been within the 6 month exclusion period until 25th December 2011. The decision maker I spoke to maintains that payment of ESA at the assessment phase rate cannot start again from 26th December, even though she would no longer be within the 6 month period, because subsection (b) of ESA para 5 state that if the person is excluded on these grounds, then this exclusion will continue to be applied for the duration of the claim, until a determination is made, and regardless of whether it is now longer than 6 months.

There is no reference to this within the original regs that I have, and so unless there has been an amendment this doesn’t appear to be correct. I would like to be sure though before I potentially make a fool of myself to the manager that I am waiting to call me back!

Your interpretation looks correct to me. There has been an amendment to include failure of the old-style PCA as a qualifying event, as well as failure of the ESA test, but this should not affect the matter here.

Thanks for the reassurance.