Failed IB to ESA conversion, but new diagnosis in the meantime.

Sorry if this question has already been answered….

My client has ADHD, diagnosis with Anaemia and was undergoing further investigations when he went to a medical for the transfer from IB - ESA.
He only scored 6 points on the medical and received a letter stating that his IB will cease on 15th November.
In the meantime he has been diagnosed with Hodgkins and will be needing radiotherapy.
I have submitted an appeal letter, but was thinking that maybe he could put in a new ESA application on 16th November, since our appeals here are taking over one year. (short term view point only)

Would there be an assessment phase of 13 weeks still?
Would he have any transitional protection if he took this course of action?

That’s a tricky one.

The change of circs has occurred before the effective date of conversion.  However, it’s not a change of circs that is relevant to the existing award of IB.  Consequently, Reg 17 of the Conversion Regs doesn’t appear to apply.

You’ve appealed the conversion decision which means your client should receive contributory ESA at the assessment rate whilst appealing.  He will initially be treated as having LCW under Reg 30 provided he submits sick notes.  However, once he starts receiving radiotherapy he should be treated as having LCW under Reg 26(1)(b).  I notice from the Nhs site that radiortherapy for Hodgkin’s is given daily, Monday to Friday over the space of 3 to 4 weeks.  Even when the radiotherapy stops he can still be treated as having LCW under Reg 26 for any week in which he has at least a day of recovery from that treatment.  Whilst treated as having LCW under Reg 26, he will not have to supply sick notes or complete a new ESA50 questionnaire.  However, he won’t be due any extra ESA.

If he’s likely to start chemo in the next 6 months (Nhs site suggests so):  http://www.nhs.uk/Conditions/Hodgkins-lymphoma/Pages/Treatment.aspx 

then he could be treated as having LCWRA (ie, support group) under Reg 35(1)(b).  However, the earliest he could start receiving the support component would be when the assessment phase re his new award of contributory ESA ends.  That would normally be no sooner than week 14 of the new award concerned.  However, Part 2 ESA Regs which governs the assessment phase has been modified by para 8 to Sch2 of the Conversion Regs.  The upshot, I think, is that in order to be paid the support component from week 14 the client would have to persuade the DM to determine whether he actually did have LCW under Reg 19 (rather than merely treating him as having LCW under either Reg 26 or 30). 

The problem you have is that Reg 147A(2), as modified, prevents a DM making the new LCW determination required until the tribunal has heard the appeal against the conversion decision.  There is an exception to this rule in para (3) of 147A, however, that exception doesn’t appear to apply, at least initially, to your client because his Hodgkin’s existed prior to the start of his new award of contributory ESA.  It might be the case that once his radiotherapy starts his condition significantly worsens in which case 147A(3)(b) could be triggered allowing the DM to make the new LCW determination.  I’d like to think that the client is found to have LCW under that assessment.

So from week 14 of his new claim, he should arguably be receiving the main phase incl support component.

If he then lost his tribunal against conversion, he would still have an award of ESA but it wouldn’t include any transitional protection.  If he wins his tribunal, however, he’ll re-gain any transitional protection.