new claim while appealing ESA. What happens if it’s turned down but original appeal successful?

Hi,

Apologies if this seems obvious but I don’t currently support people at the appeal stage (up to recon only) so am not 100% sure and have been asked by a client.

What happens in the below scenario -

Client turned down for ESA. Appeals decision.

Client starts another ESA claim based on the condition worsening (or a new condition)

Client gets turned down for this new claim.

Client wins the appeal on the original decision.

Where does the client then stand? The appeal overturns the original decision but they have now been turned down for a second time on the second application.

Thank you

Well, the new claim decision is onl;y “it’s not got worse so you can’t be treated as LCW” rather than “you’ve not got LCW” so presumably res judicata shouldn;t bite so as to fix the period of the previous award.

I think I’d be appealing both decisions just to be on the safe side.

Subject to what Dan says - I don’t know about the res judicata bit - I think Claim2 has the effect of turning Claim1 into a time-limited claim from date of Claim1 up to date of Claim2. Success at appeal re Claim1 will win an award from date of Claim1 up to date of Claim2. Client needs to win appeal on Claim2 to get ongoing award from date of Claim2. Hope that helps.

Robbie Spence - 04 October 2017 04:14 PM

Subject to what Dan says - I don’t know about the res judicata bit - I think Claim2 has the effect of turning Claim1 into a time-limited claim from date of Claim1 up to date of Claim2. Success at appeal re Claim1 will win an award from date of Claim1 up to date of Claim2. Client needs to win appeal on Claim2 to get ongoing award from date of Claim2. Hope that helps.

Res Judicata is the time limiting bit. To borrow from DLA, if you were refused then a new claim yielded low rate care then the Tribunal’s award of mid care was limited to when the new award was made. However that is a new decision using the same test as the previous decision; they’re made on the same basis albeit at different times.

In the case mooted by Jas1, the original decision is a decision on the WCA, the second decision is not a WCA decision; it’s simply an assessment of whether their condition has got worse so I don’t thnk the second decision should limit the first; they’re made on different bases.

This is dealt with in the DMG and in reg 147A of the ESA Regs.

As Dan says, the decision on the second claim is a decision saying we don’t think this person has a new condition/has got worse to such an extent they will now have LCW once they are assessed, so they can’t be ‘treated as’ having LCW whilst they submit med certs.

But it (probably) isn’t an actual LCW decision. In fact reg 147A(2) says, don’t make an LCW decision where there is a pending appeal.

I think paras (6) and (7) of reg 147A apply. I’m assuming there isn’t a change of circs to indicate the client has got better, so I think the second claim’s LCW decision should be based on the FTT decision

(6) Where a claimant’s appeal is successful, subject to paragraph (7), any finding of
fact or other determination embodied in or necessary to the decision of the First-tier
Tribunal or on which the First-tier Tribunal’s decision is based shall be conclusive for
the purposes of the decision of the Secretary of State, in relation to an award made in
a case to which this regulation applies, as to whether the claimant has limited capability
for work or limited capability for work-related activity.
(7) Paragraph (6) does not apply where, due to a change of circumstances after
entitlement to which this regulation applies began, the Secretary of State is satisfied
that it is no longer appropriate to rely on such finding or determination.

Hi
I’ve just experienced a problem that’s new to me, and was pleased to find a recent thread on this very point.

My client scored 0 points after attending a WCA (decision 1).  He appealed, we have the case papers and expect the a tribunal to be listed for hearing within the next couple of months.
Before appealing decision 1, client submitted a new ESA claim based on a deterioration/new condition.  He was paid on claim 2 at the pre-assessment rate.  Frankly, that decision to pay on claim 2 seemed a little generous to me; the evidence about change of condition seemed very thin.  Last week he attended a WCA for claim 2, and again failed the assessment (decision 2).

I’m wondering what to advise client as regards reclaiming, and challenging decision 2.  Am I right in my reading of the situation (see below)?  I’d very much appreciate your thoughts.

RECLAIMING:  As I see it, there is currently no realistic chance of a successful new ESA claim - there is nothing to indicate a further change of condition, and because there are now 2 negative decisions in succession, ESA will not be paid pending appeal.  Client’s only claim avenue until the appeal is heard is JSA (he is not yet in a full service UC area).  Would you agree?

CHALLENGING DECISION 2:  I found the discussion of reg 147A very helpful.  I’ve looked at the reg, and the commentary in Sweet & Maxwell.  As I read it, if the tribunal allows client’s appeal against decision 1, that decision will trump the decision maker’s decision on claim 2:  Reg 147A (4)(b).  Therefore, I’m inclined to advise client that there is no point in bothering to challenge decision 2.  Is that correct?

Sarah’s post reminded me, I forgot to respond and thank people for the information. So thanks to all. Staying subscribed to see responses to Sarah’s scenario

Sarah H - 17 October 2017 09:43 AM

RECLAIMING:  As I see it, there is currently no realistic chance of a successful new ESA claim - there is nothing to indicate a further change of condition, and because there are now 2 negative decisions in succession, ESA will not be paid pending appeal.  Client’s only claim avenue until the appeal is heard is JSA (he is not yet in a full service UC area).  Would you agree?

CHALLENGING DECISION 2:  I found the discussion of reg 147A very helpful.  I’ve looked at the reg, and the commentary in Sweet & Maxwell.  As I read it, if the tribunal allows client’s appeal against decision 1, that decision will trump the decision maker’s decision on claim 2:  Reg 147A (4)(b).  Therefore, I’m inclined to advise client that there is no point in bothering to challenge decision 2.  Is that correct?

You’re spot on bar one important point… ESA should be payable pending appeal two. In practice you need to make sure that the first decision is appealed and med certs are continuous.

I was party to recent correspondence between CPAG and Mark Perlic that confirmed that ESA should be payable pending the outcome of appeal 2, even if appeal 1 were not appealed however in practice that might be an uphill struggle and best to tie the appeal rate ESA to the first appeal.

Thanks Dan
So do you mean that, notwithstanding the recent WCA decision on the second claim, client should continue to get basic rate ESA until his appeal on decision 1 is heard (providing he keeps submitting sick notes)?

Hi Sarah,

Under reg 30(3) I think that’s right. As long as sick notes are provided, ESA can be paid. Whilst under sub para (5) a relevant determination is the FIRST determination that the client doesn’t have LCW, reg 147A provides as follows:

first of all, the DWP shouldn’t have made a determination of LCW on the second claim (sub para 2) unless there was a new condition or a deterioration (sub para 3)

but, if they do, then reg 30 applies as if that determination had not been made (sub para 4).

Hope that helps, sorry I was being lazy & hoping Dan would respond!

Will

Thank you Will.  I think I just about understand that!