CESA time barred

Newbie here! Apologises if this is somewhere else, but I can’t see a similar thread.
Cl placed in CESA - WRAG in 2012. Initial DLA claim failed.  2 mths before time expired subsequently passed for DLA - HM stand & move <20m - subsequently reassessed PIP - EM (same reason) & SC. Never been reassessed for ESA. Getting no IESA as partner works f/t. Receives NI credits only.

Cl condition worsened and mobility hence DLA , PIP mobility.

Cl has had no contact by DWP regards ESA for years,. Cl previously told by an advise centre that cant make any other claims as partner f/t.

Q. should the client have to make a new claim for ESA based on worsening condition? if so, would DWP POP paperwork for mobility give ESA SG under sch 3 without a new assessment. Client has never worked since original ESA claim. CPAG pg 645 looks like they could reclaim CESA if they are assessed as SG.

Client has stated they called the DWP ESA when they received DLA but were told it was ok as already getting ESA WRAG. 

Any advise is greatly appreciated.

If their ESA stopped purely because of the 365 day rule, as opposed to failing WCA, then their claim should be live, and running in the background to pay the clients NI contributions.

No new claim should be necessary, just a reassesment of existing claim

If so, the client can be reassessed, and if placed in SG the benefit should be reinstated at £109 a week if ive got that right?

Bear in mind though that ESA mobilising descriptor includes wheelchair use, not just walking.

Yes to making a new ESA claim, though c-ESA will only come back into payment if the claimant is assessed as qualifying for the support group, and also the period of LCW links back to the previous award.

PIP mobility does not necessarily get you anything from ESA automatically. ESA mobility is a test of mobilising rather than just walking, which means you also need to demonstrate why a manual wheelchair would not assist you. Even if the criteria were identical, ESA would be entitled to do their own assessment and take a different view of the facts. Still, the PIP medical may be helpful evidence for a new WCA.

edit: oops, cross-posted ... as to whether it’s technically a new claim or not, see this thread for a lengthy discussion. I don’t think it greatly matters in practice as long as DWP agree to refer for a new WCA.

I am arguing a similar case directly with a DM as not sure whether their process is correct or not . Can someone   clarify whether the decision should have been superseded   rather than requiring a further claim to be made after the time limit of 365 days expired ?

The facts of the case are as follows :

ESA claim   made in 2011- awarded CB ESA with WRAG

Entitlement terminated in Nov 2012 after time limit –( 365 days)  so,  a live credits claim continues as he still has LCW and not entitled to IR ESA as partner worked .

On a routine WCA -a determination was made in August 2012   that he should be placed in the SG .  DWP sent the claimant an ESA1 with a covering letter (unsure what this covering letter was instructing but claimant is adamant that it was returned even though he had no clue why it was sent ) DM states not received and therefore no award was made.

Another routine WCA in 2013 determined the same as above   (not sure what action was taken by the DWP   at that time as have been mainly arguing the earlier decision made in 2012 ) 

I have been looking at the Regulations, Acts and DM’s guidance memo   - 13/12 and I am not exactly sure whether   a further claim has to be made,  where an award has been terminated following the time limit and a deterioration has been identified on a routine WCA.
Any help will be much   appreciated .

After further thinking   (slowed brain over this case   ) - my thoughts are that the relevant law is Section 1B WRA 2007 as inserted by Section 52 – WRA 2012 which relates to further entitlement after time – limiting .  So,  my client does meet those conditions .

DMG Memo 13/12 – paragraph 33 –states the guidance given at paragraph 28 applies where deterioration is identified on routine WCA , which is ,  decision should be superseded in accordance with Paragraph 6 (r) and 7(39) of   SS &CS; (D&A) regulations 1999.
My only concern is that paragraph 7 (39)  states ‘following an application’. Does this mean that my client needed to apply on a routine WCA in order for his CB ESA with SG to become payable ?

Am I right or missing something ?

“Application” in this sense means an application for supersession

I can confidently say that no new claim for ESA is needed, the 365 day rule only prevents cESA from being payable, it does not terminate entitlement

Can anyone clarify what happens with a credits-only cbESA claim (after time-limiting) where cl has deteriorated such that they may now meet the criteria for the support group, in a UC Full Service area? Disability Rights Handbook Chap 11, p75, describes ‘making a new claim for ESA’...but would it not be a supersession request on the grounds of deterioration?

Essentially it’s still a claim but yes a supersession.

Further to above, if the client has a credits only cbESA claim (following time-limiting after 365 days), can they ask for assessment for entitlement to income-related ESA in a UC full service area?

So long as it is an ‘old-style’ ESA claim - which means the ESA claim started in an area that wasn’t already UC full service at the point she claimed

Further to my earlier post , have had   an update . I have had a reply from the DM after he   requested further information from the legal team in Leeds . The DM is still persistent that a new claim is required   according to the information from the legal team . I requested this information and this is what it says :

Regulation 4(1) of the Claims and Payments Regulations 1987, provides:

Subject to paragraphs (10 to 11B), every claim for benefit other than a .claim for income support or jobseeker’s allowance shall be made ín writing on a form approved by the Secretary of State for the purpose of the benefit tor which the claim is made, or in such other manner, being in writing as the Secretary of State [or the board]  may accept as sufficient in the circumstances of any particular case.
Once the claimant was found to have LCWRA the claimant satisfies the conditions tor entitlement to ESA(C) under s. 1B of the WR Act 07. But the claimant still has to satisfy the condition that a claim is made for the benefit in s. 1(1)(a) of the Social Security Administration Act 1992. The claim has to be made in accordance with the
C&P Regs 1987 i.e. it has to be made by phone or in writing as in reg 4G & 4H of the C&P Regs. The claimant can’t be entitled without making the claim, because the claimant’s circumstances were not the same when the previous award was terminated - s. 8(2)(a) SS Act 98.

The example at DMG 41865 sets oµt the process by which a new award is made including the requirement for a claim. DMG 41863 refers to the C&P Regs and DMG Chapter 02.
DWG 41865 states: - The guidance at DMG 41862 also applies where the DM determines that the claimant has, or is treated as having, LCWRA, after application of the WCA where the claimant is entitled to NI credits.

Example
Mina’s_ entítlement to ESA(Cont) began on 18.11.08 and termínated on 30.4. 12 as it exceeded 365 days. She is not a member of the support group, and remains entítled to NI credits on the basis that she wou/d have LCW if her entitlement to ESA(Cont) had not ended dúe _to tíme limiting. She is not entítled to ESA(IR) as she has a partner who is entitled to JSA(IB) for her. On 18.9.12, following a routine WCA, the DM determínes that Mina has LCW and LCWRA, and invites her to make a further claim for ESA. Mina’s claím for ESA(Cont), stating she wishes to claim from 10.9.12, is received on 14.11.12. The DM determines that she does nót satisfy the contribution conditions, but is entitled under the deterioration rule. Mina is awarded ESA(Cont) including the support component from 10.9.12.

I have been arguing that that Section IB WRA 2007 (inserted by 52 WRA 2012 )  does not express   a requirement for a   new claim to be made. Cannot someone clarify whether I am incorrect or not ?
Sorry , had to ask this question again.
.

Sorry meant to type ‘can someone clarify rather than cannot .

Not had a reply yet to my eralier post . Does anyone have any thoughts ? I am really puzzled with the concept of a ‘new claim’  in particular to the circumstances of my client’s case .  - Regulation 4 (1) of the (C&P) Regulations 1987 does not apply to claims for ESA (see par 10)  but it is my understanding that   Regulation 4G   (para1 )- is the provision that the DWP is probably arguing as they are directing a claim to be made . But my question is whether or not it should be made if my client satisfies the provisions as set on in 1B of WRA 2007 (inserted by 52 of WRA 2012 ?

I’ve nothing helpful to add, except that I can entirely see TJi’s point about s1B of the WRA, but it doesn’t seem to be reflected in the DWP process at all.

Edit: not sure if s1(1) of the Soc Sec Admin Act 1992 is a hurdle though?

Was looking at this thread, as we’ve seen someone with time-expired ESA, who has deteriorated into the support group, and has therefore been invited to “start a claim” in order to get c-ESA back in payment. While the client was credits-only we went UC full service, but the client has still been invited to return an old-style ESA1, rather than go through the new-style claim process. Anyone have thoughts on whether it should come through as new-style or old-style ESA?

For the record, and further to my edit above, that client’s c-ESA is now back in payment as “old-style” ESA, with the income-related elements apparently being suppressed. Just to be clear, this wasn’t c-ESA converting direcly into ir-ESA - the client had several years as ‘credits-only’, during which our area went UCFS.

The sequence was ESA50 followed by ESA1, I guess the ESA1 was contingent on qualification for LCWRA.