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limited capability for work assessment and 6 month rule
Client was found not to have LCW due to failure to attend medical. Didn’t appeal. Approaches us for advice 5 months and 25 days after the original decision. No new condition, change in condition or grounds for late appeal, so we wait until 6 months and 1 day has passed and help client to make new claim for ESA.
Several weeks later, no payments at assessment phase rate and unable to get an explanation as to why. I finally get to speak to a decision maker, who confirms the problem lies with the fact that 3 months into the 6 month period, the client had made a new claim for ESA which we had been unaware of, was found not entitled due to it being within 6 months of the last LCW decision, and as no new condition or worsening of current condition, was found not entitled. However, because he had made this new claim, and was found not entitled, he had therefore ‘reset’ his 6 months, and by making the new claim, we had now ‘reset’ it again!!!
As I understand it, a determination CAN be made finding a client to have LCW without them needing to attend a medical, but a determination CANNOT be made finding a client not to have LCW without them attending a medical, unless the finding not to have LCW is due to a failure to return an ESA50 or failure to attend a medical. No ESA50 was sent in relation this claim made at 3 months, nor was the client asked to attend a medical. So as far as I can see, the claim was just simply not accepted at the first instance to allow it to progress through the LCW assessment process, and that as no new LCW determination was made, no new 6 month time limit should apply, the 6 months should start from the date of the first decision and he should be able to receive ESA pending assessment of his LCW from the date of the most recent claim?
I’m at the first stage in the DWP complaints procedure with this one, and have been told I’m wrong. What do others think?
...However, because he had made this new claim, and was found not entitled, he had therefore ‘reset’ his 6 months, and by making the new claim, we had now ‘reset’ it again!!!
They say that everyone in an organisation eventually reaches their own level of incompetence. Seems the DM has reached his here.
A claim subsists until a decision is made on it – see section 8(2)(a) Social Security Act (SSA) 98.
The legal basis of entitlement to ESA is always section 1(2) WRA 2007. Section 1(2) requires, amongst other things, that the ESA basic conditions are satisfied, one of which is that you have LCW (section 1(3)(a)).
Client makes new claim at 3 months stage. DM has several ways of dealing with this:
(i) Determine immediately under Reg 19 that the claimant does not have LCW (I disagree that you must be sent for a medical before you can be found not to have LCW. The DM could use a sick note alone or he could use the old ESA50 that the client may have completed before failing to attend his original medical – after all client is not asserting in this new claim that there’s been a change of circs so why not use the old ESA50?). As a result of being found not to have LCW, claimant does not satisfy sections 1(3)(a) and (2) WRA above. A section 8 SSA outcome decision is made refusing entitlement. The claim no longer subsists. The claimant simply appeals this decision and can be immediately paid ESA pending that appeal.
(ii) Determine immediately under Reg 19 that claimant has LCW (again sick note is theoretically enough). Sections 1(3)(a) and (2) WRA are satisfied and section 8 outcome decision is made awarding ESA.
(iii) Delay making a Reg 19 determination because more information is needed, eg new ESA50 and/or an ESA85 medical report. Arrange for that info to be obtained. In meantime, consider whether client can be treated as having LCW under Reg 30. If he can, then he’d satisfy section 1(3)(a) and (2) above and a section 8 outcome decision could be made paying him ESA at the assessment rate until the WCA is made. However, the claimant doesn’t satisfy Reg 30 because by his own admission there’s no new or significantly worsened condition and there’s a failure to attend a medical determination within the last 6 months (it was 3 months ago in fact). DM makes a determination under Reg 30 that claimant cannot be treated as having LCW. At this point the law is not entirely clear in my view. There seem to be two further options:
(a) Does the DM rely on the Reg 30 determination as proof that the claimant does not satisfy section 1(3)(a) and 1(2) and, therefore, make a section 8 outcome decision refusing entitlement? The claim would no longer subsist. In that event, does the DM have to continue his efforts to obtain the above ESA50 and ESA85 to help him make a WCA? I think the answer to that would be yes. And if the client appeals this particular section 8 decision, can he claim ESA pending that appeal? I think the answer would probably be no, although it depends on whether a determination under Reg 30(1) that someone cannot be treated as having LCW is “a determination that the claimant does not have LCW” for the purpose of Reg 30(3) itself,
or
(b) Does the DM keep the claim open? It subsists after all until a section 8 outcome decision is made on it. It’s arguably not possible to make a section 8 decision because we don’t know for definite whether the claimant satisfies section 1(3)(a) until the DM makes the awaited Reg 19 determination. This is the option that the IB caselaw suggested was correct in respect of Reg 28 ICW Regs (the equivalent of Reg 30 ESA). ESA cannot be paid until either 6 months has elapsed since the determination that the claimant failed to attend the medical or the claimant is assessed under the WCA (whichever is the earlier). I have a case at permission stage at the UT at present where the Department tried to distinguish the above IB caselaw on the grounds that Reg 30 is not in identical terms to Reg 28 (that’s factually correct but the principle established by the caselaw is unaffected by the slight difference in language used – take a lot at the two versions yourself and see what you think). The Dept stated that they’d sought legal advice (though they never produced it and, absolutely disgracefully, a judge refused at the last minute to order them to produce it. And the tribunal found for the Dept – though, I suspect, the tribunal didn’t understand the argument).
Applying the above to the facts of your case, clearly the DM has not chosen options (i) or (ii) which is understandable really as it’s not unreasonable to want to see an ESA85 before deciding LCW, especially when the claimant failed to attend the last one. But they always go wrong by not choosing option (iii)(b). As Tony says it’s quite deliberate on their part.
They appear, instead, to have chosen option (iii)(a). That still requires a decision to be issued, otherwise the claim would subsist. It’s no good their saying that they simply did not “accept” the claim as properly made (ie a defective claim). If that is their position then that decision would itself be appealable. And it they haven’t issued a decision then the time limit has not started to run. And as far as the decision re-setting the 6 months for the further claim you made at 6 months and a day – I really couldn’t comment without swearing. It’s this last decision which shows the DM has reached his level – he’s made it.
Thanks for the responses. And I can relate to the need to swear right now. My most recent conversation with the DWP on this one went, me ‘but you don’t seem to be applying the law correctly, can you tell me which part of the regulations you are basing your decision on?’ decision maker *silence for a few seconds* ‘erm, sorry, that’s just the way we do it, he can’t get any money for another 6 months’.
Sigh.
The decision maker must have been reading Rightsnet. Found out that the decision was revised this morning and client is now being paid APR from the date of the new claim.
Hi Tom
Just wondered if you had any outcome with your case.
I am having not too dissimilar problems with the DWP. Claimant FTA Sept 13 (no good cause accepted rightly or wrongly). New claim made Feb 14 within 6 months. No medical as yet and DWP stating will only pay from the 6 months mark if client withdraws Feb 14 claim and makes a new claim (backdated to the 6 month mark).
Any info would be gratefully accepted
Claimant FTA Sept 13 (no good cause accepted rightly or wrongly). New claim made Feb 14 within 6 months. No medical as yet and DWP stating will only pay from the 6 months mark if client withdraws Feb 14 claim and makes a new claim (backdated to the 6 month mark).
Any info would be gratefully accepted
The 6 month rule applies to the date of claim not the date of entitlement so shouldn’t be a problem with getting the automatic 3 month backdate as long as the date the claim is made is 6 months after a FTA or WCA refusal decision. If you put a new claim in today, they should go back to early March 14 which is strictly speaking is not the same as a backdate to the 6 month mark though in your case it does appear to be not far off.
Also, I know this is probably all square pegs and round holes for the DWP but can’t see anything that requires the DWP to insist on withdrawing the earlier Feb 14 claim. Why can’t you simply have 2 claims in at the same time both awaiting determination and insist they determine both so the claimant doesn’t have to withdraw the first claim and lose out on assessment rate for that closed period. I posed this question to ESA customer services for a case I had a couple weeks ago and they folded and placed claimant in SG without need for a 2nd claim so I’ve yet to try this out.
My understanding re backdating has always been that it is the ‘date of claim’ (the words used in r.30(2)(c)) that is what is being backdated, and from which entitlement follows. This fits with expressions such as ‘late claim’ or ‘effective date of claim’.
Do you have a reference or UT judgement for your date of claim v date of entitlement argument Mark? It would certainly be one to learn and file away for future reference.
I thought same as you at first but the example in DMG Vol 8 42203 was quite revealing and shows how it should be applied.
Looks right to me. C & P reg 6 (1F) sets the date of claims essentially when claim gets into the office or date phone claim made etc. C & P reg 19 and sch 4 set the 3month time limit for claiming benefit for ESA. See sch. 4 para 16.
Hi Tom
Just wondered if you had any outcome with your case.
I am having not too dissimilar problems with the DWP. Claimant FTA Sept 13 (no good cause accepted rightly or wrongly). New claim made Feb 14 within 6 months. No medical as yet and DWP stating will only pay from the 6 months mark if client withdraws Feb 14 claim and makes a new claim (backdated to the 6 month mark).Any info would be gratefully accepted
Sadly, my client died and the case was discontinued. I was wrong to suggest in my above post that the change of wording in Reg 30 made no difference. But I’ve corrected that in other threads since.
I think the DWP’s advice to you about withdrawing the claim is probably the quickest way to get ESA back in payment. Under Reg 30 you now run the 6 months back from the “date of claim” which under the C&P Regs is the date a properly completed paper or phone claim is received by DWP. If that was Feb 2014 for your client then he’s caught by the rule as that’s within 6 months of the Sept 2013 FTA determination. And although we’re now in June, he’s still caught by the rule as Feb remains his “date of claim”. If your client withdraws the claim and makes a new one dated June 2014 he would escape the rule and DWP would even pay out on it from March 2014 (ie 6 months after Sept 2013), backdating the new June claim upto 3 months for that purpose. In that sense the 6 months’ rules for IB and ESA are potentially unchanged, the IB claimant in cases like CIB/3106/2003 and R(IB)8/04 would also have started to receive IB at that point if he still hadn’t been assessed at 6 months.
The penalty, of course, comes later if the claimant passes the WCA (whether via DM or tribunal decision). In that event, the arrears that might otherwise have been paid back to as early as Dec 2013 (ie the Feb 2014 claim could have been backdated 3 months) will only be paid from March 2014, ie the effective start date of the June 2014 new claim. The DWP when it invites you to withdraw your above Feb claim doesn’t make this clear. This is more a passive act on its part than a positive mis-statement such as telling you that under no circs would you be worse off by withdrawing your claim. However, the DWP do make the positive statement, as it has here, that the claim must, first, be withdrawn and, second, be withdrawn for its entire retrospective period, eg from Dec 2013 – June 2014, in order for payment of ESA to start from the 6 months’ point (Mar 2014) under a new June claim.
Reg 5 C&P Regs, of course, allows any claim to be withdrawn before a decision is made on it. No decision would be made on the Feb claim until a WCA (or until claimant had a new or significantly worsened condition) so it is certainly capable of being withdrawn. But the question that then arises is: does the law insist on the entire claim being withdrawn or only part of it, eg the part covering the future period of the claim only? Judge Mesher answered this question in CJSA/3979/1999. In short, the claim may be withdrawn for a prospective period only. One difference in CJSA/3979/1999 compared to the present situation was that an award (of JSA) had already been made. But, if anything, the implication is that it should be even easier to withdraw a claim prospectively where there has not yet been a decision (“even where there is a current award, a claimant may withdraw a claim on a prospective basis” – para 24) (my emphasis). Nevertheless, the advantage of an extant award was that it would need to be formally ended by review [supersession] which Judge Mesher felt was a useful means of checking whether the claimant’s intention to withdraw was genuine or, eg, the result of improper pressure/duress.
In the present circs, a prospective withdrawal of the period June 2014 onwards from the Feb claim would leave a decision outstanding for the period, eg, Dec 2013 – June 2014. That section 8 SSA decisoin, when eventually made following the WCA, would be the equivalent check/balance on the genuineness of the claimant’s intention to withdraw as that provided by the review in CJSA/3979/1999. The Feb claim would also then become a definite claim and, if the WCA was subsequently passed, a definite award. All ESA claims that continued to fall foul of Reg 30(2) at 6 months could, in theory, be converted by the DM acting on his own initiative into definite claims by virtue of Reg 17(3) C&P Regs. Even though a decision on the now definite Feb claim would be delayed until the outcome of the WCA, payment could start at assessment rate on the new indefinite June 2014 claim pending the same WCA. There’s nothing stopping a definite and indefinite claim running at the same time.
But in reality, the DWP are going to insist on the withdrawal of the old claim entirely. R(H)2/06 holds that a successful retrospective withdrawal means the claim ceases to exist. That means there’s no previous award to revise should you pass the WCA triggered by your later new claim (eg the June claim above). It seems Reg 3(5D) D&A has very limited application (the blue volumes says this has been omitted but it’s referring to an older version of 3(5D), the current version remains good law in my view). It could have been used perhaps to start paying ESA in Mark of Carnage’s thread from the date his client significantly worsened (though MoC’s argument about the worsening effectively having retrospective effect is equally permissible). In the above example of the DWP already having backdated the June 2014 claim to March 2014 , Reg 3(5D) could not pay arrears any further back than March so would be useless.
Continued…
[ Edited: 17 Jun 2014 at 04:18 pm by Tom H ]Instead, I think we may have to rely on R(H)2/06 where we have, inevitably, succumbed to DWP’s advice to withdraw. The claimant there contended that he’d retrospectively withdrawn a CTB claim under duress. Whilst his appeal against an attempt to get the claim re-instated was ultimately unsuccessful, the judgment supports the principle of re-instatement of a withdrawn claim where there has been some improper conduct. Judge Bano in R(H)2/06 was influenced by Judge Mesher’s comments in the above CJSA/3979/1999 where he had not committed himself on the type of behaviour that could represent improper conduct, preferring to treat each case on its individual facts, Judge Mesher did go as far as saying this:
“In some circumstances, an important line may need to be drawn between passivity or omission by another person (eg in omitting to correct a mistaken impression formed by a claimant) and positive acts such as the making of misrepresentations or threats.”
The DWP, in my view, make a misrepresentation of the law by presenting retrospective withdrawal as the only way to re-start payment of ESA. Other options are treating on its own initiative the existing claim as a definite one under Reg 17(3) or allowing agreeing to a claimant’s prospective withdrawal only. Other evidence to consider when assessing the genuineness of the withdrawal would be the wording of any withdrawal letter (eg “I am withdrawing my claim because you have advised me that I cannot otherwise be paid ESA until my LCW is assessed which could be months away”) and the fact that you make a new claim effective from the day immediately following the last day of the withdrawn period of claim.
I recently mentioned elsewhere that an unintended consequence of an attempt to tighten the law might be an actual easing of it (eg, it’s arguable that MR requests made outside of one month are still in-time due to sloppy drafting). Equally, Reg 30 appears to have eased the 6 months’ rule in one way. And this also answers your question Tony. Before being discontinued, my late client’s case was granted permission by Judge Wikely who stated, almost as an aside, this:
“On one reading, however, the change in the wording of reg 30(2)(b), designed to avoid the effect of CIB/3106/2003, seems to produce a rather strange outcome. It would suggest that a person could claim ESA the day after the expiry of the 6 month period, and request backdating for 3 months. In such a scenario the Secretary of State would apparently be required to treat the claimant as having LCW from the date 3 months earlier – even though that 3 months would overlap with the 6 month period following the previous determination (when the old reg 28(2)(b) would not have been met).”
Tightening and easing.
[ Edited: 3 Jun 2014 at 04:38 pm by Tom H ]My understanding re backdating has always been that it is the ‘date of claim’ (the words used in r.30(2)(c)) that is what is being backdated, and from which entitlement follows. This fits with expressions such as ‘late claim’ or ‘effective date of claim’.
Do you have a reference or UT judgement for your date of claim v date of entitlement argument Mark? It would certainly be one to learn and file away for future reference.
I thought same as you at first but the example in DMG Vol 8 42203 was quite revealing and shows how it should be applied.
Looks right to me. C & P reg 6 (1F) sets the date of claims essentially when claim gets into the office or date phone claim made etc. C & P reg 19 and sch 4 set the 3month time limit for claiming benefit for ESA. See sch. 4 para 16.
That’s right Mark. If I regard myself as unfit for work and have a sympathetic GP (who’ll provide a backdated sick note if necessary) I can wait almost 3 months before claiming. Reg 19 and Sch 4 C&P Regs extend the period I have to claim by 3 months. The 3 months is run back from the date the DWP receive a properly completed form or phone call. The date of receipt of that claim is the “date of claim” under Reg 6(1F) C&P and, also, for Reg 30(2) ESA. All as you say.
Judge Wikely was making the point, which I think is almost certainly correct, that as long as your “date of claim” is outside the 6 months, even by as little as one day, you can ask for a backdate of 3 months despite that putting the claim start date bang in the middle of the 6 months’ rule. And you can expect payment immediately for the 3 months concerned (ie without waiting for a new WCA) because your claim satisfies Reg 30(2), ie its “date of claim” it outside 6 months. That is a definite improvement on the situation in IB as Judge Wikely also points out. The 3 months in the above example would all be caught by the 6 months rule even under the old case law such as R(IB)8/04. On refection, that scenario was probably anticipated by the government. It’s just that they probably felt that not many people would be able to rely on it, ie how many people can afford to wait 6 months before re-claiming?
Thanks for taking the time to go into so much detail much appreciated, will now spend all day trying to digest it!
Thanks again