Failure to return ESA50

Would be grateful for any thoughts on this situation.

Client was claiming ESA. 26/09/11 claim was terminated due to failure to return ESA50. I saw her a couple of weeks later in outreach and assisted with making a new claim. She then did not engage further and was uncontactable so I couldn’t assist with making a good cause appeal or filling in a further ESA50.

She has now come back and it appears that the second ESA claim was turned down - a message left from a call back from the BDC states that this was because it was less than 6 months since a previous decision and because she subsequently claimed JSA (23/11/11). It is not clear whether it was the 6 month rule or the JSA claim that shut the claim down.

Is there anything that can be done here? My understanding of the 6 month rule is that it is not a bar on claiming ESA but a rule about whether you can be treated as having LCW. If you claim ESA within 6 months of a previous decision your claim should be accepted but you won’t get any payment until either the 6 months pass or a new LCW decision is made. If the original LCW decision was as a result of failing to return an ESA50 you can get it reversed and go back onto assessment phase payments by subsequently returning one.

So if the DWP had just closed her claim down because it was 6 months since the last decision that would be incorrect? But if for example the claim just ran for 2 months with no payment and was then closed down because of the JSA claim that would be correct (although I’d still be unimpressed by the apparent failure to make clear to the client that she could get her payments back up and running by returning a new ESA50).

Am I also right in thinking that even if the claim was stopped because of the 6 month rule and we got the DWP to accept this was incorrect, it would not actually make any difference as the client never actually returned that second ESA50 - her only route would be to make a complaint?

Hi

One the claim had stopped the situation could have been rectified by client providing them with a completed ESA50, as once the information by way of the ESA50 is provided the client should be treated as having LCW under Reg. 30(2)(b)(iii) ESA Regs. 

You are right in asserting that a claim though provided within 6 months should be accepted, though no payment can be made on it, until client is reassessed under WCA or 6 months have elapsed.

I am struggling to think of anything that can be done about it (other than a complaint), unless client can make a late appeal (as just in absolute time limit for late appeal) against the decision to terminate ESA by treating him as not having LCW, if there was good cause for client not complying with the ESA50 requirement, and good cause for a late appeal.  Any other thoughts?