reclaiming ESA whilst under appeal

I know there’s been much discussion about claimants who lose cbESA after 12 months reclaiming and NI contributions for different tax year being used.

I have a client who will lose entitlement when this comes in in May.  DWP have advised my client that she could fit into this group of people and have sent her form to reclaim.  Our problem is that she failed WCA 2 months ago and we appealed.  So it is her ‘ESA whilst under appeal’ that will end. 

Regardless of 12 month limit, how can she submit new claim within 6 months of failing WCA?

The award of CESA pending appeal is being time limited even though it is only 2 months’ old because its period of limited capability for work (pLCW) links to the pLCW of the CESA which the client is appealing, to form a single pLCW.  The DM is saying that the tax years used at the beginning of that single pLCW have not changed so the 365 days starts to run from the start of the single pLCW.  That’s right.

There isn’t a problem here.  He should wait 12 weeks and re-apply.  If his appeal has not been heard by then, he can be paid ESA on the new claim because he would still have the protection of Reg 30(3) ESA Regs, ie he would still be pursuing an appeal.  If his tribunal has been heard before the 12 weeks then one of two scenarios would apply.  If the tribunal dismissed his appeal he could, as Tony says, still claim CESA, but payment couldn’t be considered until 6 months had elapsed since he failed the WCA or until a new WCA was carried out (whichever was the earlier). 

If the tribunal allowed his appeal and put him in the WRAG, his old CESA would still be time-limited as above but the 6 months’ rule would not apply because the previous WCA would have been overturned by the tribunal.  So he could be paid CESA immediately on the new claim, provided the DM is right about the client satisfying contribution conditions for a later tax year re that claim.  If the tribunal put him in the support group then he doesn’t have to worry about making a new claim.  The DM would revise the time limiting decision and start paying him CESA from 2/5/12.

I agree Tony that’s it’s a problem where his appeal has not been heard at the end of 12 weeks, he re-applies anyway and is subsequently placed in the support group re the old award by the tribunal.  As you suggest, the tribunal decision would, ironically, be time limited by the new CESA award.  It might be worth making a protective appeal against the decision awarding him assessement rate CESA on the new claim in that situation and trying to get that appeal joined with the appeal against the original WCA failure.  After all, there’d be no submission of note for the Department to produce re the protective appeal.

For clarity, this post is all about contribution-based ESA as my client’s husband works full-time for good wage.  I also wouldn’t think entitlement to support group is a possibility.

Let me get this right (after reading above posts at least 10 times):

My client can claim again within 6 months. 
We should wait 12 weeks from WCA decision so not linking periods of ltd capability for work.
My client will be paid at assessment rate as appeal ongoing and won’t have to wait 6 months (if she meets NI contr. conditions for different year) even though it is not the new claim under appeal.
The appeal would be for limited period and that might be a problem.
If appeal unsuccessful payment of ESA would stop until 6 months has elapsed or new WCA has been done.

Am I correct here?

Maybe we should just wait for the appeal, as long as it isn’t next year (who knows?) as my client’s entitlement based on different tax year will be affected.  This is tricky as if my client loses appeal she will have lost out on ESA whilst waiting, although thinking about it there will only be entitlement to 12 months ESA anyway, whether that’s now or in 6 months.

Waiting might be the best option.  What do people think?  Have I gone mad?