ESA payment while appealing

Happy new year to all you good rightsnet people. I have an issue with a client who has been in IB for ages due to MH problems. He was sent for a WCA as part of the IB - ESA conversion process and failed his WCA.
As the tribunal service is backed up and we are now encouraged to ask for reconsiderations, I requested that the decision be revised in our clients favour and i also enclosed a GL24 if they decided not to reconsider.
I then expected him to be paid the assesment rate UNTIL a determination has been made either way. Faxed paperwork to Bradford BDC on 21/12/2010 and they confirmed they had received the faxed paperwork (original “lost” by DWP)
Client called me today to tell me he still hadnt received any money at all. I called DWP to query and was told that no money can be paid to the client unless the decision maker decides that he has good grounds to appeal! I challenged this and told him that the assessment rate must be paid until the LCFW determination is made but he was adamant that no money is due until a decision maker decides whether an appeal has merit in the first place? When on earth did this start? The guy refused to accept that the assessment rate should be paid, even though they have my revision request, a GL24 as a fall back and up to date sicknotes.The DWP guy insists that this is correct and i am now waiting for the obligatory 3 hour call back. Any ideas folks or any regs i can quote?

I think that this is partly a problem of language, made worse by employing contact centre staff who don’t understand the technicalities of social security law, to relay information accurately.

The assessment rate is paid under reg 30 of the ESA Regs under a provision which treats people as having LCFW within 6 months of failing the WCA if they are pursuing an appeal.  Thus ESA is not paid when a revision request is made.  That is one reason why pushing people down the recon’ path is not a good idea. 

It has nothing to do with deciding if an appeal has merit but whether there is a valid appeal lodged.  My advice is to get a DM to throw the recon request away and deal with it as an appeal in the usual manner relying on your GL24.  Any half decent DM shouldn’t have a problem with that.  They might want your client to confirm this of course.

Thanks Nevip - greatly appreciated. I naively was under the impression that a recon request was treat as the same as an appeal with regard to being paid assessment rates until LCFW determination. Guess i was wrong.Sod the lot of them. I was trying to do the Govt, The Tribunal Service and Jobcentre plus a favour by trying to reduce their workload with regard to Tribunals. No more reconsiderations from now on - GL24 every time from here on in!

I never, ever, request a ‘reconsideration’ but always move straight to an appeal.  It’s one of the issues over which colleagues take a different view.

However, it’s worth reading the statement made by His Honour Judge Robert Martin, when he was President of the First-tier Social Entitlement Chamber, and gave evidence to the Work and Pensions Committee on Decision Making and Appeals:

“I think it is presented as a false choice to claimants who have received a refusal of their claim.  It is presented in terms of, ‘Would you like us to look at our decision again or would you like to appeal?’ Presented with that choice, most people unsurprisingly … opt for reconsideration.  Would you look at it again?  It seems to be quicker, and if you do appeal there is no suggestion that the Department will also look at the decision again. ... t might be better presented if it was expressed in terms of, ‘Would you like us to look at our decision again superficially or would you like us to look at our decision again seriously? … What is surprising to me is that if an appeal is lodged it is as though the Department then opts out of the process. ”  -  Work and Pensions Committee, Decision Making and Appeals in the Benefits System HC 313 (2009-10) Memorandum by HH Judge Robert Martin DM27 [22, 24].