ESA 6 month rule

Hi was wondering if anyone could help out. My client has made a reclaim for ESA to be told that the 6 month rule applies (i am disputing this). Was told she has to wait to have medical assesment before any money will be paid. When i asked the jobcentre what she was supposed to live on i was told she needed to claim JSA. But she had already been told that if she claims JSA it will stop her ESA claim!!!!

Think i am loosing the will to live!!!!

Thanks

I can think of situations where the advice from JCP is correct - can you give a bit more detail on your clients circs?

If the new claim was made within 6 months of a previous claim finding the claimant not to have limited capability for work, and there hasn’t been a substantial deterioration in health, or claim based on a new condition, then the decision not to award ESA at the assessment phase rate pending assessment of limited capability for work is probably correct.

You may want to check the date of the original decision finding the client not to have limited capability for work - if more than 6 months has now passed since this date then a new claim for ESA can be made, and ESA should be paid at the assessment phase rate whilst limited capability for work is being assessed (the decision finding the client to have claimed within 6 months is not a determination of limited capability for work, and should not therefore ‘restart’ the 6 month period as the DWP have tried to argue with me before).

If there is quite a long time left of the 6 month period, I have not yet found a way round the need to withdraw the ESA claim in order to claim JSA. I would like to challenge it, however challenging it would take time, often time that the client doesn’t have to manage without any source of income, and so has no choice but to withdraw and claim JSA.

So i take it the six month rule applies only if no LCFW found, So if a client on the assesment rate decides to close his claim and go back to work, finds he cant manage , reclaims ESA again a couple of weeks later at assessment rate then everything should be fine?

We rarerly get people on Assesment rate who feel fit enough to try to return to work full time.

The six month rule applies to a LCW determination. So, if no decision has been made, e.g. if the claim ends while the claimant is pending assessment, s/he can reclaim if s/he goes from work back onto benefit. If the claim is within 13 weeks of the previous claim, it will be linked; if it is after this, it will be a new period of LCW.

If a LCW decision refusing benefit has been made and the claimant reclaims within six months, the claim should be accepted, but not paid until a favourable LCW decision is made.

Don’t forget that claimants who are refused benefit can appeal (after mandatory reconsideration since 28/10/13) and receive the assessment phase rate pending the hearing - this usually means that six months have elapsed by the time of the hearing so should the tribunal refuse benefit too, the claimant can reclaim benefit immediately (and be paid).

Hi - I am dealing with a similar 6-month rule complaint:
- Client was failed WCA in 5th June 2013; appealed but lost in October 2013.
- Following appeal failure, I advised client to claim JSA until 5th December 2013 when 6-month time period expired, then make a new claim for ESA.
- Unfortunately, client re-claimed ESA on 28th October, despite no deterioration in condition. DWP “refused” this claim on basis of the 6-month rule, (I dispute this because the client can still claim ESA, just not receive payments until after fresh WCA).
- Client then made new claim for ESA on 5th December (6 months after initial WCA decision), but was again “refused” because he had claimed within the 6-month time limit. When I disputed this, I was told that his October claim re-started the 6-month time period.

I have complained, but have not yet been able to convince them that 6-month rule only applies to decisions on LCW and so the decision to “refuse” ESA in October does not re-start the 6-months because it was not a decision on LCW.

The complaint continues…