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ESA during mandatory reconsideration period
From hansard yesterday -
‘Kerry McCarthy: To ask the Secretary of State for Work and Pensions if he will take steps to ensure that claimants whose employment and support allowance has been disallowed receive an income while the reconsideration of their case is pending.
Mr Hoban: Employment and support allowance will continue to be paid pending the outcome of appeals against decisions that a claimant does not have limited capability for work. This will include the reconsideration period once an appeal is lodged. Claimants who are disallowed employment and support allowance also have available to them other benefits such as jobseeker’s allowance, housing benefit and council tax benefit.’
here’s a link to hansard -
‘This will include the reconsideration period once an appeal is lodged..’
So does he mean that ESA will be retrospectively paid for the reconsideration period only after the appeal has been lodged following unsuccessful reconsideration? Or does he not understand the question?
I think that it means exactly what 1964 says - that there is no possibility of a backdated award until a “real” appeal. This is in essnce what happens at present, only more so.
This will cause chaos as the system groans under the weight of transferring masses of people on to JSA and then back to ESA pending the appeal. And, how many people will successfully make it back after the DWP ‘persuade’ them into staying on JSA.
Very worrying isn’t it.
Won’t a claim for JSA stop the previous ESA claim? So if you claimed JSA whilst you requested a reconsideration this would essentially make the recon/appeal pointless? Or am I missing something about making new claims for ESA and asking for periods of LCW to be linked?
If he is suggesting that clients claim JSA during the recon period then advisers are going to have to be very proactive making and progressing complaints re delayed recons and appeals/complaints regarding overly wide jobseeking agreements/sanctions imposed despite good cause. It’s not a great position to be in but hopefully if done consistently the weight of work on the DWP dealing with so many appeals and particularly complaints might cause them to reconsider a policy that seems incredibly poorly thought out.
I think it’s more a case of “Ask a stupid question, get a stupid answer”.
I think the wrong question was asked by the MP! It should have specifically referred to the position post April 2013 when the mandatory reconsideration before appeal comes into force.
To me, the answer just confirms what the current position is.
I hope that DWP won’t go down the daft, punitive route of stopping ESA until the second/appeal stage is reached. But they have a good track record in not taking on board concerns raised by outsiders (unless it fits their agenda) and there are signs that Ministers don’t like the principle of continuing to pay ESA after it has been appealed.
I agree with Neil that the wrong question was asked.
The Governments response to the consultation on mandatory consideration of revision before appeal on this point was:
“No decision has yet been made with regard to paying ESA pending reconsideration but other benefits may be available to claimants where ESA has been disallowed”.
It would be intersting to know whether this ‘indecision’ is for policy reasons - an intention to require claimants to claim JSA instead with its greater conditionality or for technical / admin. reasons - such as whether the current or UC IT systems will actually make (either) option possible.
We have sought further clarification from the DWP - asking if, at the point that an appeal is made, ESA will be backdated to when it ceased, and will other benefits claimed in the mean time (like JSA) be deducted from arrears - and they have responded by saying -
‘The position is that ESA will only be paid during the reconsideration period if an appeal is subsequently lodged.’ and ‘The policy intent is that ESA would be backdated to the point at which benefit ceased. Note that medical evidence continues to be required. And yes if arrears of ESA are subsequently paid any other benefit such as JSA would have to be deducted if paid for an overlapping period.’
NB - we did make it clear that we were asking about the position under the new mandatory reconsideration before appeal provisions.
It would be useful if an example notification letter to be sent to claimants could be obtained to see how clear it is for claimants, particularly those with mental health problems, to understand their rights and how to exercise them. Moreover, how many claimants will be ‘allowed’ to claim JSA as Jobcentreplus decide that, due to disability, they are not available for or actively seeking work? This has the potential to cause widespread distress and hardship. And, will LA HB departments continually stop and start HB payments each time benefits keep being switched? There doesn’t seem to be any reason why the regs cannot be amended to allow payment during the recon’ process other than sheer indifference on the government’s behalf. This is going to be a mess.
Yes it looks like we are going to have that old argument with local Jobcentre staff that a decision that some one is ‘fit for work’ applies to JSA [Jobseekers Act s1(2)(f) whatever their view of the claimants capability may be. Will we see numbers of such ‘found fit’ claimants being sanction for not being available etc increase as well? How will local JSA staff deal with claimants who are found fit but are clearly unfit in practice?
How many new claims for ESA will then be made while awaiting for a revision decision because the 6 months period in Reg 30 has expired?
It would also appear to introduce a double conditionality in that claimants will have to demonstrate ‘availablilty’ etc. at the same time as continuing to submit a med cert while they pursue a revision and then an appeal (in a similar way that claimants still needing to sign on every fortnight to demonstrate ongoing availability etc while they appeal a decision that has caused payment of JSA to be refused /stopped so they can receive arrears of JSA if they win their appeal!). And will GPs understand this requirement?
And how will DWP administer a claim for JSA at the same time as record receipt of med certs. My understanding is that the IT system cannot maintain a ‘live’ JSA & ESA claim at the same time.
This will be yet another of IDS’s ‘simplifications’ then.
It does make one wonder why senior civil servants in DWP don’t advise ministers that such a proposal is an administrative nightmare and possibly unworkable in practice (i.e. ‘plain bonkers’ in manderine speak).
And, it has just occurred to me, on Peter’s point about sanctions, if the government introduce, as planned, the requirement to jobsearch for 35 hours per week how on earth are many people who are ill/disabled going to manage that?
Not paying ESA until the appeal stage is reached will be madness for all the reasons set out above.
However, it fits the political agenda of appearing to be tough, it will reduce the number of people applying for a first stage reconsideration and will drive many off ESA and JSA altogether.
It will also artificially reduce the figures on successful LCW outcomes and confirm prejudices that some people never “needed the benefits in the first place”. I can already see the headlines in the Daily Mail.
And the DWP response still does not make clear whether Reg 30(3) will continue to apply at the appeal stage or if they intend to repeal that provision in order to require a claim for JSA (or IS etc) until a tribunal has actually made their decision.
Even under UC the requirements suggested would still seem to be an administrative nightmare! And of course we will have both systems running in parallel for years!
And it only Thursday afternoon!
It also makes it positively beneficial for the DWP to take as long as possible to reconsider decisions (and I am certain they will be encouraged to do exactly that). As things stand currently, conversion appeals are taking up to a year to reach reconsideration stage locally. It’s possibly the most cynical government tactic I’ve seen yet.
Let’s just hope all local JC’s are fully disabled accessible because they’re going to need to be.
It will be interesting to guage the reaction of local Jobcentre staff at the next stakeholder meeting to questions about how they will handle a significant increase in ‘unfit’ claimants claiming JSA. Given the number of WCAs being conducted it will be interesting know what proportion of new JSA claims will be from ‘found fit’ claimants.
I can see lots of ‘notices before action’ being sent to DWP legal due to long delays in making revision decisions.
Back in the good old days when DLA/AA appeals required a two stage process it usually took around 12 months before a case came to hearing (and there were not the same level of delays then - consider what the combined impact of ESA/DLA/PIP (and the rest) revisions / appeals will be!).
It also raises a question for advisers about what stage to undertake detailed evidence gathering for a revision (particularly as any evidence used by DWP will not be available in a submission at that stage). Although there are likely to be long delays with DWP making revision decisions (or will they be quick and superficial?) with a one month deadline for making a revision request (remember it was 3 months back in the old days) advisers may need to ‘grab’ clients at the earliest possible stage to start the process, wait for GP replies etc before submitting evidence to support a revision request already made (and what if DWP actually make the revision decision while we are in the evidence gathering process?). One can see the additional case management issues and admin. nightmares with DWP that will arise as well as advisers having a large number of cases ‘live’ for 12 months plus.
It may be useful to refer large numbers of cases to MPs for action when there are long delays awaiting a revision decision. A constituency surgery full of the same issue (i.e. WCA decisions) can have an impact as we have already experienced with the MP for Witney.
I believe it was always the case in the past with IB that a claim for JSA pending an appeal does not prejudice the IB appeal, however I had a case with ESA in which the claimant made a JSA claim pending his ESA appeal and DWP decided that during the appeal period he was “off ESA” so not entitled to any backdated ESA when he won his appeal, not just the offset of JSA against the arreas of basic ESA, but they also refused to pay the arrears of the work related element during the appeal period too.