Reclaiming ESA & R2R

I’m a bit stuck on this one, would really appreciate some help!

I know you can’t reclaim ESA if you fail a medical unless you have a new condition, but what about if you failed the R2R test at the point when you applied but could now meet the conditions for derivative R2R?

The family of a 19yo Polish man with a learning disability applied for ESA for him in August 2016. He has a severe learning disability so will never be able to work and gain retained worker status/R2R in his own right. He currently is in residential care and living off his PIP mobility component, but unable to move into supported living as he can’t claim HB.

At the point when they applied, neither of his parents was working. His mother had cancer and was receiving PIP, but hadn’t claimed ESA or registered her unemployment. His step-father was doing occasional self-employed work, but nothing consistent and he doesn’t have any records to prove he was working enough for it to be ‘genuine and effective’.

They came to the UK in 2007, but his mother hasn’t been a retained worker for the first 5 years so can’t pass on permanent R2R. She only married the stepfather in 2012 so at the point of the application my client also couldn’t get permanent R2R from the stepfather.

From October onwards, the step-father has been in full-time work so would be able to pass on derivative R2R (as far as I understand, I may be wrong about this!). The Mandatory Reconsideration date is 17th Jan so it’s been 4 months since he was turned down. Are we allowed to make a new ESA application with the changed situation and fresh evidence?

Thanks for your help, any advice would be much appreciated.

Short answer is yes.

It’s not strictly a derivative right of residence…..

Step father has a right to reside and dependant family members then have a right of residence as a consequence. Dependency is automatic where the family member is under the age of 21.

The rules about reclaiming and new conditions and/or significant worsening apply only where the claimant has actually failed the WCA. In your client’s case, he never got as far as the WCA due to the right to reside decision - so can claim again.

I can’t see any reason why you shouldn’t make a fresh claim.  The rules preventing someone being paid on a second claim are all linked to capability for work.  He hasn’t been found fit for work, so the rules don’t bite.

He may have difficulty after he turns 21 though.

I would be considering appealing the existing decision as well/instead - if you have an MRN from January and the facts suggest a right to reside at the time,its worth putting the appeal in. I’ve certainly had later appeals than that accepted.