Payment of ESA when making a new claim within 6 month period under new health condition/deterioration.

Has anybody come across this situation:

Client has failed to attend two medicals and on the second FTA, her benefits have been disallowed. I have been informed by the DWP that as she has 2 FTA’s, on an appeal, they will not reinstate benefit until a decision is made either by DM/Tribunal. I accept this.

However if the client wishes to make a claim for a deterioration or new health condition, they are not not entitled to be paid until they have attended a medical? I knew this applied if they claimed within 6 months on the same health condition but have not heard this for new/deterioration. I have asked the DWP for regs but surprise surprise, they could not provide me with any!

Anyone any ideas?

Thanks

The answer to your query lays on reg 30 of the ESA Regs 2008.

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—
(a)  whether or not the claimant has limited capability for work;
(b)  whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or
(c)  whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).
(2) The conditions are—
(a)  that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and
(b)  that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless—
(i)  the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;
(ii)  a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or
(iii)  in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.
(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998( ).

I would send a copy of these regs with a new claim if your client has either a different medical condition or can show there has been significant deterioration in the condition (Might need evidence from GP etc)

Thanks for that Steve, i was informed by the DWP that the rules changed this year and I simply cannot find them anywhere…...