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Claiming ESA at the Assessment rate while waiting for appeal.
Hi there, I have a clt with what I initially thought was a simple case.
Clt claimed ESA in 2016, attended WCA and was awarded 0 points. Submitted MR and DWP who upheld their decision.
Clt decided not to appeal.
Made a new claim for ESA in 2017 on the basis of a new medical condition. Attended another WCA and scored 0 points. Another MR was submitted and an appeal to the tribunal was this time lodged.
Has tried to reclaim ESA at this point as she is waiting for a hearing date. DWP informed her that she cannot reclaim.
I made a call to DWP and was informed that because she has had a second disallowance, she would not be allowed to reclaim ESA until after a determination is made at the hearing and would have to remain on JSA.
Can anybody advise if this correct procedure, and if not provide any regulations that I can go back to them with?
Many thanks!
How can it be a second disallowance if it is a different condition?
This from CPAG might help you challenge them.
Ask CPAG Online - Can you get paid ESA waiting for a decision?
The issue is the interpretation on ESA Reg 30 in this situation. We currently have a client who is in the same / similar position.
It appears the DWP accepted for the puproses of 30(4)(a)or(b) that your client had a new or an existing condition significantly worsened and paid ESA at the assessement rate on the new claim pending a new WCA because 30(4) disapplies 30(2)(b)(i). That is correct.
DWP argue that although they can be paid during the assessemnt phase of the new claim on the basis of a new or significantly worsened condition if they subsequently ‘fail’ the WCA and get to the appeal stage 30(2)(b)(i) applies because the decision now under appeal is the 2nd negative determination and therefore 30(4) does not apply at the appeal stage (even though the new claim was initailly paid under 30(4)). This is because 30(3) does not apply because the decision now under appeal is not the first “relevant decision” (30(5)). It is a second “relevant decision” because it is the second WCA ‘failure’ and 30(4)(a)or(b) does not disapply 30(3) or 30(5).
In other words in this situation at the appeal stage the client has to remain on JSA (assuming they have avoided ‘natural migration’ to UC).
it is debatable whether it was parliament’s intention that the 2015 amendments to Reg 30 should have this impact in this particular situation rather that simply stop claimants who had previously failed a WCA (inc. losing their appeal) re-claiming ESA after 6 months with the same condition that had not worsened.
I understand CPAG are looking at potential test cases in this situation.
[ Edited: 22 Jan 2018 at 02:12 pm by Peter Turville ]any update on these tests cases or is this still the case?
thanks
The issue is the interpretation on ESA Reg 30 in this situation. We currently have a client who is in the same / similar position.
It appears the DWP accepted for the puproses of 30(4)(a)or(b) that your client had a new or an existing condition significantly worsened and paid ESA at the assessement rate on the new claim pending a new WCA because 30(4) disapplies 30(2)(b)(i). That is correct.
DWP argue that although they can be paid during the assessemnt phase of the new claim on the basis of a new or significantly worsened condition if they subsequently ‘fail’ the WCA and get to the appeal stage 30(2)(b)(i) applies because the decision now under appeal is the 2nd negative determination and therefore 30(4) does not apply at the appeal stage (even though the new claim was initailly paid under 30(4)). This is because 30(3) does not apply because the decision now under appeal is not the first “relevant decision” (30(5)). It is a second “relevant decision” because it is the second WCA ‘failure’ and 30(4)(a)or(b) does not disapply 30(3) or 30(5).
In other words in this situation at the appeal stage the client has to remain on JSA (assuming they have avoided ‘natural migration’ to UC).
it is debatable whether it was parliament’s intention that the 2015 amendments to Reg 30 should have this impact in this particular situation rather that simply stop claimants who had previously failed a WCA (inc. losing their appeal) re-claiming ESA after 6 months with the same condition that had not worsened.
I understand CPAG are looking at potential test cases in this situation.
No update I am aware of but looking at regulation 30. I’d argue, at least on the wording of regulation 30, that DWP is wrong on their reliance on the decision needing to be the ‘first’ negative determination since a finding of LCW (a requirement of the definition of relevant decision in regulation 30(5)(a)). This ignores the other definition of relevant decision in 30(5)(b) - that refers to the first decision finding no LCW after a ‘previous’ (not the first) determination of LCW. The previous determination of LCW in our case was the worsening/new condition award, so the subsequent decision finding no LCW fits the definition of a relevant decision in 30(5)(b) which in turn can lead to payment pending appeal. Unless I’ve missed something, this seems logical outcome, as a claim based on a new/worse condition is not an abuse of the process to stay on ESA that was the original driver to bring in the limits.