Reclaim within 6 months of failed WCA, and no payments

I’m fairly sure there have been discussions on similar points, but couldn’t find one specifically on this, so here goes.

Man loses WCA appeal, and reclaims ESA , marginally within the 6 months from date of original decision.  DM will not pay until attends medical, which also leads to unsuccessful decision - so appeals, and gets paid from that date.  Has not had any benefit payments over a period of several months.

The Disability Rights Handbook says :

‘The decision maker may decide not to reassess you immediately.  This cannot be appealed, but after six months you may be paid on the basis of your fit notes.’

Our local office point us in the direction of Reg 30, arguing that it is specific on ‘date of claim’ :

30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a)whether or not the claimant has limited capability for work;
(b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or
(c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).
(2) The conditions are—

(a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and
(b)that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless—
(i)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;
(ii)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or
(iii)in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

Now it seems to me they have a point, but I’d love to be able to demonstrate that they should be paying from the date we reach the 6 months.  Can anyone help?

This is definitely an attempt by the Department to overturn the effect of the caselaw such as R(IB)8/04.

The problem with using the “date of claim” as the date to run the 6 months back from is that it makes the length of the “period” in which the claimant cannot be treated as having LCW different for each claimant, depending on how long it takes a DM to carry out a new WCA.  In your claimant’s case this was several months over and above the 6 months.  It’s arguable that section 8(6) WRA 2007 did not authorise such arbitrariness.  Instead, the subsection concerned arguably envisages a fixed period.  Judges may be inclined to interpret it as such, in which case the Dept’s attempt to “legislate out” the old caselaw would fail. 

If that’s not correct then the Dept may well be correct in its interpration and that is in spite of the fact that the claim subsists under the SSA until an outcome decision is made on it.  “Date of claim” is, for ESA, defined by section 6 (1F) Claims and Payments Regs as effectively the date the new claim is received.  In the present case that date was just within the 6 months since the old determination.

However, even if the DWP are correct there seems no reason why the DM cannot treat the new claim as an advanced claim effective from the 6 months and 1 day point.  That would at least ensure the person is paid ESA whilst waiting for a new WCA.  Such an approach may, however, cause problems if the claimant passed that new WCA, as then his arrears might be paid back only to the effective date of the advanced claim rather than the actual date of his claim (though I suppose he could always ask at that point, ie when he knows he has been found to have LCW, for upto 3 months’ arrears running back from the effective date of the advanced claim).
I have a case at the UT which includes an argument on the interpretation of Reg 30.

They still don’t seem to have revoked sub para 2(c) of Reg 30 which allows the following defence: that the claimant satisfies Reg 30(1) even if the date of his new ESA claim is well within the 6 months.  That’s because he satisfies para (2)(a) & (c) of Reg 30.  And that’s all he needs to be treated as having LCW under Reg 30(1).

Thank you both for these very helpful responses.  My hopes are raised.