ESA Linking Rules

Would be interested in anyone’s feedback on this.

Client has a Tribunal coming up re his LCW.

Was originally receiving ESA with WRAC but this was stopped on Jan 12th last year after he failed to return his ESA50. He reclaimed on March 13th and requested backdating. I assisted him to fill in his ESA50 on March 23rd, but DWP do not seem to know when this was received. They are treating him as having LCW from 30th April when he provided a med cert confirming a new condition. Their note states that LCW still needs to be established for period from January and client has been receiving assessment rate (and then subsequently appeal rate following negative decision).

What I’m interested in is what should be paid for the period Jan - April. My understanding is that claimants cannot be treated as having LCW if there has been a previous negative determination in the past 6 months, unless various circumstances apply, two of which is that the client has now provided information previously requested and that there is evidence of a new condition.

DWP are using the latter, and what this means is that the gap is more than 12 weeks and periods of LCW cannot be linked. My understanding is that client will have to serve 13 week assessment phase from 30th April even if successful at tribunal. Although DWPs own note suggests that if successful at tribunal they will backdate to when his previous claim stopped?!?

I’m almost certain that the ESA50 would have been received within 12 months of the previous LCW period stopping. If this is the case I can see 3 potential arguments depending on Tribunal outcome:

- If successful at Tribunal client entitled to WRAC for whole period from when previous claim stopped. The two LCW periods link and so no assessment phase and now that client has returned ESA50 there is no reason why he cannot be treated as having LCW. Or…

- Successful at Tribunal but only entitled to WRAC from the date he returned ESA50. As LCW periods link no assessment phase necessary

- Unsuccessful at Tribunal but still entitled to WRAC between the date he returned his ESA50 and date that it was determined after medical assessment that he no longer has LCW.

If anybody has any thoughts I’d be grateful. To be honest it sounds like DWP will add the WRAC for the whole period all the back to January 2012 if client successful but I was just wondering where he stands if they do not do this or if he loses his appeal.

I agree that this sounds like the most sensible explanation based on that note, but my worry is that it conflicts with previous advice they had given me that they were not paying as client had no new condition or deterioration. I’d been arguing with them that this did not matter as he had returned his ESA50 and had actually assumed that they had conceded the point whereas it now seems that it wasn’t until they got the evidence of the new condition that payment resumed.

I’m worried that a fresh medical certificate filling the gap will not show evidence of a fresh condition and this is what they are looking for. Certainly worth a try though!

Thanks for you help :)