365 day rule query (determination issue + use of language?)

This may have been covered before, however i cant seem to find it.

I have a client who for some reason has been on the assessment phase of ESA for just over a year.

Her medical is next week, and I have no idea why it has taken so long for this WCA.

Anyway : Her ESA has stopped under the 365 day rule and the reason given by Jobcentre plus is that “She isnt in the Support group”
This situation is correct : there has been no determination of WRAG or SG as it has taken over a year to have her medical, so she isnt in the SG.

I understand that the assessment phase is part of the 365 day process once that a determination is made, however they stopped her money 3 weeks ago.

I may be wrong here, but i thought the wording of the rules meant that “claimants in the Work related activity group will have their CBESA limited to 12 months”

As she is neither in the SG or WRAG are they allowed to stop the benefit before such a determination has been made? I have told her that once her medical has been done, and if she is in the WRAG, then they will pay arrears from the 13th week of the claim and that is all she will get.

Even if she fails the medical, i argue that the assessment phase should still be in payment until the outcome of the medical, as she isnt in the WRAG, and never has been.

I know this issue is all about the interpretation of language and mutual exclusivity etc but any help would be appreciated.

Thanks

Potentially a bit tricky I think.

The 365 day rule applies to all cESA claimants other than those in the support group (so it applies to those left languishing in the assessment phase). The one exception to this is that if the claimant goes from assessment phase to the support group then the days spent in the assessment phase do not fall within the 365 allowable days.

Couple of questions/points:

1. Is she definitely not entitled to irESA?

2. Can she reclaim cESA now based on different contribution years?

I have not looked at it in full but think that there is a problem with them revising/superseding in this case even if they do a medical now.

If that is right then I think one potential approach might be to say that the decision ending ESA is wrong- appeal that decision and say that they must determine LCW and LCWRA before ending ESA- ask for the tribunal to include a doctor and go and argue client does have LCW and LCWRA so ESA should not have ended.

On the issue of a possible ESA re-claim after 12 weeks, based on a later NI contribution year -
- has anyone any experience of a client successfully doing this yet? 

I know DMG guidance says a reclaim is perfectly possible, but how do JCP treat a re-claim? 
- do they pay assessment rate when a re-claim is made, or withhold payment until a further WCA is carried out?
- if a client’s ESA has stopped purely due to the 365 rule they still have LCW and continue to get NI credits
- so would a re-claim go onto the WRAG rate straight away?

I want to put some advice on this on our website, but I’m very unsure what would actually happen if a client did claim again