Lapsing appeals

Morning,

Any thoughts appreciated!

I’ve an ESA appeal that has just lapsed, but DWP are refusing to pay any ESA. Should it have lapsed?

Appeal was against ESA decision that client has LCW but not LCWRA. DWP revise and decided he does have LCWRA so appeal lapses. That decision makes no comments about payment, just LCWRA.

A couple of days later we get a second decision letter from DWP stating that they still cannot pay any CBESA because of 365 time limiting. So I’ve just submitted an MR against that.

In the appeal I had only made arguments about LCWRA, I hadn’t said anything about time limiting and payment of CBESA because I naively assumed that would be automatic. If I had also made arguments about payability of CBESA and the 365 day time limiting not applying should the claimant be LCWRA would the appeal still have lapsed? Or would I still have an appeal to be going on with?

Looking at reg 30 of the D&A regs re when a decision is more advantageous that is all about decisions being advantageous when there is a financial gain of some kind. DWP treat the decisions about LCWRA and payment of ESA as being entirely separate decisions, is this right or does it depend on how we make the argument when submitting the appeal?

Jane

I would say LCWRA is a constituent determination embodied in an ESA decision, so unless the ESA decision is revised in the claimant’s favour the appeal doesn’t lapse. The decision ought to be revised and the appeal ought to lapse, sounds like internal delay rather than active refusal to revise

Thanks - that’s helpful.

Jane

Hi, this happened to me a few years ago, but it actually went to appeal. They stuck to the 365 day argument so I resorted to the complaints system, at second level they accepted the info was at the bottom of the 2nd page of their guidance, so had been missed and so ESA went into payment. Yup they had completely ignored my references to the law! As it was their mistake I argued for a extended period before next assessment, which was granted, that was now 4 years ago!
They simply don’t know their own rules and can’t be bothered.
As an aside recently trained a former ESA trainer for DWP who was convinced that you could not claim both types of ESA simultaneously - siiiigggggghhhhhh.

Oh dear that doesn’t bode well for a quick resolution. And I was thinking I was being over the top quoting the regs re 365 days & support group at them!