Failed to attend medical, new claim for new condition, but timing a bit wrong….

My client failed to attend her medical on 4/7/12 and her ESA claim was subsequently ended. Her reason for not attending was that she had not been able to stay at her own home. This was because she woke up one morning and was barely able to walk due to pain, undiagnosed but probably something in her back. She lives on the second floor so has been staying at a friend’s house ever since.

She wasn’t able to get up the stairs to check for post so missed the invite to her medical. She also has mental health problems which don’t help her deal with her affairs

I’m helping her appeal the decision to end her claim, but I wondered if anyone thought it would be possible to make a new claim on the grounds of a new condition - even though this started before her last claim ended. My other thought is to try to seek a late supersession - she says she’s been on ESA for a while so it may be possible to argue that she should have been placed in the Support group

any thoughts?

If they make a new claim on the basis of a new condition, that new condition must have occurred after the determination that the claimant does not have LCW [Reg. 30(2)(c)(i) ESA Regs]  This would particularly be a problem if the “new” condition was the basis of the good cause for not attending the medical!  I don’t know whether a late supersession is possible, maybe someone else can chip in with an opinion on this.

Otherwise, if they can’t rely on the new condition for a new claim, they can still make a new claim for ESA whilst the good cause appeal is going on, but won’t receive any ESA until they are reassessed, or instead could claim JSA.

Thanks for those thoughts - I appreciate it’s all a bit of a long shot, but I may have to try your argument Tony. She says her GP has provided a med cert that gives ‘hospital investigation’ as the reason for signing her off (as well as other existing ailments). So, perhaps I can say argue she doesn’t have a specific disease or bodily or mental disablement

It’s clear she’s going to get nothing at least until she has a further medical. I can’t imagine that i’ll get a decision maker to accept this argument so I expect to have to appeal and that will take ages…

The appeal against failing to attend will have to mention that she already had the condition/health problem, but this and the new claim won’t be looked at by the same person, so maybe she’ll get lucky!

Unless I dreamt it, I think I came across a CD once that said “specific” wasn’t the same as “specified”.  If so, then the lack of a diagnosis is not necessary fatal as long as there is evidence that there is definitely something there.

CIB 26 2004 concerns ‘specific’ vs ‘specified’.
Also, R(DLA) 3/06.