SICK PERSON CLAIMING UC AFTER FAILING ESA WCA

I have a client who scored zero points with ESA 5 months ago following a WCA. She didn’t challenge the decision and claimed JSA instead. She is now feeling unwell again – she has a bad heart - and is struggling on JSA. An ESA claim is not an option as her postcode has become full service UC.

My question is if she were to make a claim for UC as a person with limited capability for work,  whether the DWP will use the medical evidence and previous failed WCA against her and refuse to give her another (UC) WCA ?

ie Does she have to show a new medical condition or a deterioration in her health? Or does a UC claim put her at ground zero in terms of a health assessment?

Thanks,
HFCA

We are full service here too (since May) and I was just talking about this the other day. I am an appeals worker and have already had several clients who have failed their WCA on ESA and are appealing but who have meanwhile claimed UC and after presenting a med cert have all been accepted and going down the LCW route of UC. The sig worsening / new condition requirement does not seem to apply. I have it in writing from the DWP that if they win their ESA appeal BEFORE the UC determination is made whatever component is awarded will be put onto the UC going forward and they won’t need to be reassessed.

UC regulation 41(4) says

If it has previously been determined on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations that the claimant does not have limited capability for work, no further assessment is to be carried out unless there is evidence to suggest that–
(a) the determination was made in ignorance of, or was based on a mistake as to, some material fact; or
(b) there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition.

So in principle, the position is unchanged from ESA - you need to point towards a change of circumstances to be re-assessed.

The difference, I suppose is that unlike reg 30 for ESA, you only need to show evidence to suggest a change and that change does not need to be substantial nor necessarily a deterioration. Not sure how significant that is.

41.—(1) The Secretary of State may carry out an assessment under this Part where–

(a) it falls to be determined for the first time whether a claimant has limited capability for work or for work and work-related activity; or

(b) there has been a previous determination and the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition or whether that determination was made in ignorance of, or was based on a mistake as to, some material fact, (my emphasis)

but subject to paragraphs (2) to (4).

The “first time” and “previous determination” above both appear to refer to the assessment done “under this Part”, ie Part 5 UC Regs.

Paras (2) to (4) provide further circs when an assessment may or may not take place (see Elliot’s post for para (4)) but in each case the assessment being referred to is one done under the UC Regs or the ESA Regulations 2013, ie concerning either UC or new style (contributory only) ESA.

So someone in the position of the client in the OP appears to have a right to an assessment under UC because their most recent failure of the WCA was under the ESA Regs 2008.  No worsening/new condition/change of circs needs to be shown.

Fair point Tom - I had missed that last night!