Contribution Related ESA ran out after 12 months in the work-related activity group, can we put a change in circumstances to get the client into the s

Hi

Six month’s ago my client’s contribution related ESA ran out after being in the work-related activity group for 12 months.  She cannot claim income-related ESA because her husband works full time.  She did not appeal the decision to put her in the work-related activity group because she did not know that she had the option to do so.  We are now out of time to appeal. 

Can we put a change in circumstances to get the client into the support group?  If we can and we suceeded would her payments of contribution related ESA start again.

Thanks

Check out http://www.dwp.gov.uk/docs/m-13-12.pdf

Yes, and yes. Although DWP appear to get getting quite strict on whether they accept that there has been a change of circumstances and so look for medical evidence which confirms this to send with the supersession request. if it is not accepted that there has been a change in health, client should be assessed again automatically in the future as part of the continuing ‘credits only claim’ as I understand it, and so a new decision placing them in the WRAG only could be appealed against. If they are then placed in the support group, either following supersession or new assessment, then they will be entitled to payment of CBESA again.

It’s not a change of circs but a new claim.  Entitlement to ESA ceases from day 366 unless you still qualify for ir-ESA.  As it’s a new claim there’s no need to show that her condition has got worse.  The decision maker who converted her into the WRAG cannot bind the future DM who looks at the new claim.  The latter DM is free to disagree with the former one over whether she should be in the support group based on the same facts, ie without there needing to have been a change of circs.

See paras 30 - 32 of the DMG that Mick gave the link to.  In particular para 30(2)(2.2).  Para 32 suggests the DM can treat a notification from the claimant as a claim provided it contains, in effect, the same info that would be captured by a claim form or a telephone claim.

But the DMG is only guidance of course.  It suggests that there must be a deterioration in health only because it cannot comtemplate one of its DMs disagreeing with another on the same facts.  It even calls section 1B WRA 2007, ie the law which governs this, the “deterioration route”.  However, section 1B does not make it a condition that the person has got worse.  Section 1B does, however, require the person not to have ceased having LCW since the old award was time-limited as well, of course, as requiring that they get into the support group. 

Section 1B doesn’t expressly state that a new claim is needed.  Instead it’s implicit in 1B(1)‘s refernce to the former entitlement having “ceased” that a new claim is required.  It is settled law that you cannot supersede a nil entitlement which is what you’re left with following time-limiting.

They could chance an appeal against the conversion decision even though it’s more than 13 months’ old.  That’s on the basis that there is caselaw in the context of DLA which suggests that the time-limit for appealing a decision does not start to run until the person becomes aware of the “true nature” of the decision (CDLA/3440/2003).  In that case it appears (sorry I only have the summary provided in the commentary to Reg 28 D&A Regs) that the claimant did not appeal a DLA decision which incorrrectly stated was for life but was actually for a fixed period.  The Commissioner held that the time limit for appealing ran from when the claimant first became aware of the true nature of the decision, presumably in that case from the date payment of DLA stopped or not long before that.  In your case, the client has obviously been aware of the implications of not getting into the support group for more than one month (after all, her decision was time limited more than a month ago) but she’s unlikely to have been aware for more than 13 months, meaning a late appeal is not impossible.

Still, the DWP often make it up as they go along.  They’ll almost certainly want evidence of a deterioration and probably want an ESA3 completed.

Ok, I see it now. Still struggling with the concept of the ‘claim ending’ after 365 days worth of CBESA being paid. What is the underlying entitlement to continue having NI credits paid and by which LCW assessments to continue to take place if it isn’t an active claim, albeit one without actual payment, if that makes sense?

Krissie Newton - 05 November 2013 01:29 PM

Ok, I see it now. Still struggling with the concept of the ‘claim ending’ after 365 days worth of CBESA being paid. What is the underlying entitlement to continue having NI credits paid and by which LCW assessments to continue to take place if it isn’t an active claim, albeit one without actual payment, if that makes sense?

Despite the claim ending they’re still in a period of Limited Capability for Work and that’s the trigger for credits rather than entitlement to ESA itself. Hence they can close the claim but leave a file with ATOS for periodic review of LCW and the credits entitlement.

I don’t know if there has been a change of circumstances in the client’s condition or not.  It is too late for a late appeal as it has been longer than 13 months since the original decision. 

Hello. This is my first post, though I’ve been reading the forums for a while.

My client’s circumstances are the same as the OP’s. She was placed in the WRAG after being migrated to ESA(Cont) in April 2013, and because her husband works full-time she failed the assessment for ESA(IR) in April this year. It has now been just over 14 months since the initial decision.

Based on the posts above, it seems we should have a go at appealing the WRAG decision despite being late, and simultaneously to put in a new claim for ESA(Cont) (by the ‘deterioration route’).

I wondered whether Tom H or anybody else could clarify for me what the commentary on Reg 28 of the D&A Regs says about the case law mentioned above (I don’t have access to Sweet & Maxwell myself). From posts elsewhere it sounds as though in the case cited, there was a clear error on part of the DWP which resulted in the claimant not knowing the nature of the decision that had been made. Does the commentary provide any more information or interpretation? Does anybody have access to the case itself: CDLA/3440/2003? Has anybody had success in appealing outside the absolute time limit using this or other case law?

Thanks!!

That would be great, thanks. 0141 944 5504 is the fax number.