ESA repeat claims

Just seeking some assistance if possible. I have client who made a claim for ESA due to a foot injury and was find fit for work, he then made a claim for JSA but his foot injury recurred and he was directed by the Job Centre to make a new claim for ESA. He was refused ESA straight away with a letter stating that following a WCA he had been assessed as fit to work. The WCA they refer to was made on his original claim. His condition isn’t any worse than when he made his first claim.

How long does the WCA remain on his file, does this now mean he will never be able to make a claim ESA in relation to his foot without make reference to this original ESA claim..

The situation isn’t that he can never “claim” ESA again, it’s that he won’t be paid until he’s been assessed as having a limited capability for work, whether following subsequent claim, MR, or appeal.

ESA and abolition of the ‘six month rule’

If you think that you can make a case for how he does meet the statutory requirements for LCW, then challenge the refusal and provide supporting evidence if possible. Ask them to expedite decision making. Appeal if necessary and again ask for expedition. He may, however, have no choice but to claim JSA in the meantime - if he does so and can get a medical certificate for 13 weeks, that would allow him to argue for a relaxation on his work seeking availability.

For repeat claims, it’s important to remember the distinction between having limited capability for work simpliciter and being treated as having limited capability for work pending an assessment. The former is a straight-forward determination that you would challenge in the normal way, whereas the latter is subject to having either a new health condition or significant worsening in an existing health condition. If a DM decides that someone has a health condition that has not significantly worsened since the most recent assessment and there is no new health condition, he then immediately makes a limited capability for work determination because - being satisfied that there is no significant change to the person’s health since the report was produced - he uses the same report to make the new decision.

There is no expiry date for an ESA85, but I should think the department will destroy it in line with its document retention policy, which I think is to do so after five or six years.

This CPAG article may be of interest if you’re looking at arguing for “significant worsening”: ESA and significant worsening.