Benefit options following failure to attend PCA

Client long term sick on IS, failed to attend a PCA or respond to chase up letter, therefore IS terminated. We will appeal, on grounds of mental health issues meant could not cope with paperwork at the time. Client flatly refuses to claim JSA in the meantime even with restrictions on availability, and even though has no income. Are we correct in thinking that following the amendment last June, ESA can not be claimed for 6 months; and IS will not be paid until client passes a PCA?

(I’m sure this has been covered in a previous thread, but I just can’t see it, sorry).

Client has a sick note. Probably difficult to argue a new or deteriorating condition. No other route to claiming IS. A DLA claim is in. Any other options/tactics for expediting getting benefit back in payment?

You are working late!

The thread I think you were looking for is here http://www.rightsnet.org.uk/forums/viewthread/753

Chaos (who also cannot sleep)

Thanks Chaos. That thread does concern a WCA not a PCA, I’m going to sleep before thinking about what that might mean :)

Sadly I think you are correct - your client has very limited options if they can’t show good cause for missing the PCA medical and get that decision revised quickly

They can’t claim ESA for 6 months, unless they can show a new/worsened condition. Even then they will not get any ESA until they attend and fail that medical and can then appeal. My arguement would be that taking all of someone’s income away will obviously cause stress or worsen any existing mental health problems…

Their only options are JSA or Crisis Loans, and those will be a fight if there’s no live claim for benefit…

He should claim ESA and be paid it immediately because he satisfies Reg 30(2)(a) and (b) ESA Regs and, therefore, can be treated as having LCW under Reg 30(1) until he undergoes the WCA.

Its reg 30 (2)(c) which is the problem. This is the bit bunged in by the ammendments last June. He won’t get treated as LCW until he has the WCA, but this should be done quickly. Most people would claim JSA in this situation to get some cash but if he can manage by selling all his socks on ebay then good luck to him.

30(2)(c) isn’t a problem because he only needs to satisfy 30(2)(a) and either (b) or (c) not both - it’s a loophole in the law at present.  They inserted the word “or” at the end of 30(2)(b) I’m sure in error.

Well I’ll go to our house! Hadn’t noticed that and got to be worth a try but there was some caselaw on reg 6 of the D&A regs from about 8 years ago about little connective words. The Commissioner said that an ‘and’ could be read as an ‘or’ if that was clearly the ntention. Can’t find the reference just now.

With statutory interpretation there are legal presumptions on the meaning of words.  One such presumption is that “or” takes its disjunctive meaning (ie conditions separated by the “or” are read as alternatives).  However, a legal presumption on a word’s meaning may be rebutted by the context in which the word appears.  If the context permits, therefore, “or” can take its conjunctive meaning (ie it can mean “and”).  I think the context of Reg 30(2) is such that “or” has to be interpreted disjunctively.  But I’m not aware of the caselaw you mention Damian.

I remember reading the decision Damian mentions but I too cannot remember the reference or even the benefit in question.  I can’t for the life of me think why I didn’t download it as I usually do with the more important ones.

I think it was on Reg 6 Claims and Payments Regs Damian and it did concern DLA as you say.  It was Judge Mesher.  I have it at home.  I said I wasn’t aware of it but it’s come back to me.  I’m on leave next week but I’ll try to post the reference.

Thank you for all the responses. So the thing to try seems to be:

- Appeal IS, ask for an expedited hearing and PCA

- Claim ESA (backdate to date of IS disallowance), perhaps explicitly citing on the claim that client satisfies Reg 30(2)(a) and one of (b) or (c), as required.

- If cl attends and passes a PCA, ESA claim will lapse when IS comes back.

- Hope a WCA isn’t scheduled in the timeframe…

Heres that decision -

cib/4051/2001

http://www.osscsc.gov.uk/Aspx/view.aspx?id=832

edited to fix link

For the record: the IS appeal on this case was allowed very quickly so we are not going to test whether or not ESA would come in payment pending the appeal. Full IS should be back in payment, but they have advised that a medical will be rearranged soon, which must now fall to be a WCA rather than a PCA.