New application within 6 months of refusal.

I would welcome any thoughts on a potential strategy to help one of my clients.
She applied for ESA and was turned down in June 2013, she did not appeal. She reapplied in October 2013. She is still waiting for a decision to be made. This is a pretty standard waiting time for all my clients at the moment.

The problem is as she reapplied with 6 months of the decision, with no new or worsening health condition she is not receiving the assessment phase rate payment. We have explored whether there is any medical evidence relevant. Nothing. Client does not feel able to claim JSA as she rarely leaves the house.

I have spoken to Atos, DWP and they appear to be no nearer to making a decision. “We are not working to a time scale!” Was Atos stock response!!

With this in mind and 6 months since the October application almost upon us, I am pondering whether they would be Better to just cancel this claim and reapply. They would have lost 6 months but would at least get some money.

Any thoughts would be welcome!

Have a look at the following?

para 8.7 of R(IB)8/04

Put another way, is the date that Your cl sought to make the claim from – Date – treated as the sole determinative date for the purpose of Reg 30?

The six months start ticking from the June 2013 so she would have have been entitled to be paid from December. I can’t see, on the face of it, see why you shouldn’t be able to argue that the October claim should be paid from that date, without the claim being withdrawn whether or not ATOS/DWP have reached a decision on the period of the new claim which falls prior to the end of the 6 monts…. But I’m willing to shot down in flames.

I.e. What Bryan said only much less eruditley put!

I initially made that point about R(IB) 8/04 in an old thread, but I was quite correctly put right: the regulations have now been changed to legislate out the effect of it. The ESA regulations are different so that it is now the date of the claim that counts for the 6 month rule.

However, I can’t see why a new claim can’t be made without withdrawing the first one. Page 1582 of CPAG suggests making multiple new claims over a period of time if habitual residence is in issue, so I can’t see why the same can’t be done for ESA by analogy.

I’ve seen this a few times and if you make a new claim they’ll put it into payment and abandon the old one.

I’ve never needed to chase the old claims though as in both instances I’ve seen to the end there were issues arising from the Equality Act and DWP paid the claims out, from the date of cessation, within a day or two of receiving the letters before action…

I would be interested to know what you argued regarding the Equalities Act, or was that related to a different issue?

I cannot understand why they don’t just say, you have applied too early wait untill the 6 months is up and come back.  this client would be alot better off if they had just said that.

When was the date of claim? Prior to April 13?

Yes how does the equality impinge itself upon ESA Regs. I thought it could not override this sort of legislation, might you explain Dan.