Late ESA appeal or new claim?

We have a client who was refused ESA back in Jan 2012. She did not appeal (poss good cause for a late appeal).

We have been informed by the DWP if we make a new claim now (more than 6 months since the date of decision) she cannot also make a late appeal against the Jan decision. Is this the case?

If we make a new claim can we also ask for a backdate of 3 months on this - as this would take the client to less than 6 months since the date of the last decision - so would she have to prove her condition has got worse? If she could not prove it had got worse would they refuse the whole claim or just the backdate…

We are very confused!

(a) I can see no reason why she cannot make a new claim and try for a late appeal against the previous decision.

(b) if for example the previous decision was on 03/01/12 and she makes a new claim and backdate request on 12/07/12 then I think what should happen is:
(i) she will be paid from 03/07/12 (6m after the previous decision) while waiting to be assessed, and
(ii) if she passes the assessment she will then be paid arrears from 12/04/12 (3m backdate)

Victor

Victor - 12 July 2012 12:58 PM

(a) I can see no reason why she cannot make a new claim and try for a late appeal against the previous decision.

(b) if for example the previous decision was on 03/01/12 and she makes a new claim and backdate request on 12/07/12 then I think what should happen is:
(i) she will be paid from 03/07/12 (6m after the previous decision) while waiting to be assessed, and
(ii) if she passes the assessment she will then be paid arrears from 12/04/12 (3m backdate)

Victor

Agree completely.  However, the DWP in my experience will attempt to refuse the claim because some of its days are within the 6 months.  That approach falls foul of R(IB)8/04.  In that case, the claimant had failed a PCA on 28/11/01.  She re-applied for IB on 23/8/02 asking for the claim to start from the earliest possible date which, given the max 3 months’ backdate, was 23/5/02.  That meant her proposed start date was within the 6 months’ ban, which expired on 28/5/02.  The DWP attempted to refuse the claim in its entirety for that reason.  The Commissioner held that she could be paid IB from 29/5/02:

“8.7 In a case where, as here, a claim is made for a period that started within six months from a previous adverse determination but the claim is not determined until after expiry of the six months, the further determination must also take that change into account; so that days of claimed incapacity within the period of the new claim supported by prescribed medical evidence and falling outside the six months are entitled to the protection of regulation 28(1) (even though earlier days were not) until such time as a personal capability assessment has actually been carried out or for some other reason that protection ceases to apply.”

Reg 30(2)(b) ESA Regs is not in identical terms to Reg 28(2)(b) ICW Regs, the latter referring to “within the preceding 6 months” whereas the former refers to “within 6 months preceding the date of claim” but there is no practical difference. 

However, DMs often cite para 33 of DMG 33/10 as a reason for not following R(IB)8/04.  However, para 33 simply reflected the fact that a person no longer, from 28/6/10, had to make a new claim for ESA in order to be awarded ESA pending appeal.  It did not change the approach to the 6 months’ rule set down in R(IB) 8/04.  And IB caselaw on general principles carries over to ESA.

Have a look at Reg 147A ESA Regs. Don’t mean to be cryptic but in a bit of a rush- basically prevents making of further LCW decisions whilst claimant is pursuing an appeal.

Hi Martin

My earlier post was really concerned with a new claim where there isn’t an outstanding appeal.  Obviously, if the appeal against the original ESA refusal was admitted late, the claimant’s ESA pending that appeal would include arrears all the way back to day after the orginal refusal.  He’d escape the effect of the 6 months’ rule by being able to rely on Reg 30(3) ESA Regs.

I read Reg 147A as simply preventing a new LCW determination rather than preventing a determination under Reg 30(1) treating a claimant as having LCW on the expiry of the 6 months. But as mentioned above, I don’t think that situation would ever arise as a claimant appealing an earlier WCA would always be treated as having LCW due to Reg 30(3).

Have a case going to appeal next week, client failed WCA and ESA not awarded from 27/5/2011, client has longstanding mental health problems and in my opinion should have been awarded. She did not appeal this decision but on 23/7/2011 made a new claim. She has therefore been disallowed under reg 30(2) as no evidence of worsening condition, this decision has been appealed.

Is it an option to ask panel to treat current appeal as a backdated appeal against first decision, taking into account client’s mental health problems and inability to deal with paperwork? I don’t think I am going to get any evidence to prove her condition has worsend between 27/5/11 and 23/7/11, so presumably if a backdated appeal is not allowed there will be no basis on which to allow current appeal?

Removed my post.  Good luck.

From my reading of it, your client has missed the boat. Appeals can’t be backdated and she is now outside the absolute time limits to lodge a late appeal against the decision of 27/5/11. It will therefore all hang on whether the tribunal is satisfied that her condition deteriorated between 27/5/11-23/7/11.

Thanks for reply, can see what you are saying about appeal now being out of time limits but was wondering if the appeal lodged on 26/9/11 against the second decision could be also be treated as a late appeal against the first decision?

What did she say in her appeal letter/GL24? Was there anything that could have reasonably been understood as her expressing a wish to challenge the earlier decision?

no! nothing

Then I think it won’t run. Tribunal will be constrained to consider whether there was deterioration between May-July 11.

Edited to add that especially as your client has long-standing mental health problems,  could a possible argument be that the negative decision of May 11 had a significant detrimental affect on her condition?

Thanks for the advice, will give deterioration a go