re-claiming ESA

Tom H - 16 August 2010 10:10 AM

And finally, as far as Christi’s client is concerned, the DM must after 28/6/10 make a new determination under Reg 19 on the worsening condition by virtue of Reg 147(A) (2) and (3)(b) ESA Regs regardless of the fact the appeal against the original decision is ongoing.

Thanks.  I thought that must be the case, but it’s aways good to have chapter and verse.

On a simple practical basis the JSA DM’s confirm that a new ESA claim for the same illness can be made 6 months from the date of the original decision refusing ESA.  If an appeal is still ongoing then the new claim is not accepted as the claimant is still getting ESA at the assessment phase while appealing.  If for a different illness then the claim will be accepted and the appeal continues for the previous claim.
The ESA paid while appealing is a ‘new award’ not a new claim.  It is paid automatically when the DWP have received the GL24.

I had a conversation with an ESA DM on this subject yesterday.  My client’s appeal of a decision in January 2010 was struck out before 28/6/10 (I am attempting to get it reinstated) and he made a new claim in early July, just short of six months from the date of the original decision.  I am trying to find out the relevant start date to establish if he can make a new claim now for the same illness (not deterioration etc).

The reasons given for refusal of the new claim were: 1) that he had not provided a medical certificate or stated what his medical condition was so that it could not be established whether his condition was the same, different of had worsened since the January claim; and
2) that he had claimed within 6 months of a determination that he was to be treated as capable of work, having failed a WCA.  Unfortunately the date from which LCW is not accepted has been omitted from the decision, but the DM said this was from the date of the new claim i.e.July.

The DM I spoke to was not entirely sure, but after conferring with a colleague he said that because the case was struck out before 28/6/10 the old rules applied and the relevant date for the start of the 6 months for reclaiming was therefore the date of the striking out.  I am not convinced that this is correct, particularly because I question if a striking-out is a determination of the decision under appeal.

Help please!

Hi Annad
As I understand it from talking to the ESA DM (not JSA as I put before!) the start date for the 6 months is from the date of the decision refusing ESA. So Jan in your client’s case if you are going to check the current refusal on dates.
If he is inside the 6 months he needs a sick note with another illness or a worsening of original illness as you say and if outside the 6 months then the same illness is sufficient but still needs the sick note.
Why was the appeal struck out?  Usually only happens if there has been a recon with a better outcome.  They don’t strike out for failing to return the TAS1 any more.
Are they saying that the 6 months starts on 28/6/10 because the striking out is a decision on capacity to work?  Could you appeal that?
N

Hi Nicolette

The appeal was struck out because they said the TAS 1 had not been returned, although client says he sent it back immediately.  He did not, however, respond to their reminders and warnings because he had returned the form and the first letter said that he should ignore it if he had already done so.  I have written to ask for the appeal to be reinstated, which would be the simplest route for the client.

The striking-out was on 10/6/10, which was BEFORE the change in the regs (28/6/10) and they have not said that it is a determination on capacity for work, but the fact that they say the 6 months would start from that date would suggest that that is the reason.  The new claim was AFTER the change in the regs but within 6 months of the original (January) decision.  The DM I spoke to said that a new claim now would be dealt with under the old rules because of the date of the striking-out, which meant that the 6 months for a new claim for the same illness would start from 10/6/10.

I doubt if an appeal on this latest decision would succeed in either scenario, because his new claim was within 6 months of the January decision and he is not claiming a different illness or deterioration.  What I need to establish is the start-date of the 6 months for a new claim now. If it is January he can put in a new claim for the same condition with medical evidence; if it is June he can’t until December.

Hello again
I think that if the TAS1 is not returned the TS first chase the client and then chase the rep and then finally do a paper hearing. I have had a number of clients saying they have returned the TAS 1 and TS B’ham say they haven’t got it.  But by then B’ham are chasing me. I would look into the reasons for strike out to see if legit. If not then you may have access to the Jan decision start date.
Just a thought.
N

Hi Nicolette

Unfortunately the client did not approach us until last week so I was not involved in the striking-out at the time it happened.  It appears that the client did write to request reinstatement within 1 month of the striking-out so I live in hope that the appeal will be reinstated on receipt of my letter, or reasons given as to why not.

I have received definitive advice from my guru at our Welfare Benefits Unit and he says that the DM’s advice is correct: i.e.  the date of the striking out is the start of the 6 months because the case comes under the old rules, so it appears that reinstatement of the appeal is the best bet.

Thanks for your input,

Regards

Anne

Anne

It’s unclear from your earlier post whether the client was ever awarded ESA pending the appeal that was eventually struck out.  Her appeal form together with medical evidence would have been enough for a DM to make such an award (ie she wouldn’t have needed to make a new claim).  It seems, however, that she never provided any medical evidence in which case an award pending appeal would never have started.

When the appeal is struck out, there appears to be no award of ESA pending appeal for the DM to determine.  Because the 6 months must run from a determination rather than from thin air, the 6 months can only run from January. 

Had the appeal still been ongoing, she wouldn’t have even needed to submit a new ESA claim, just a sick note in order for ESA to be awarded pending appeal.  However, given the appeal was struck out, she rightly made a new claim and because that was within 6 months of the January decision, an award of ESA was not made. 

She doesn’t need to make a further new claim at present as the new claim she has already made will allow a DM upon the expiry of the 6 months to make an award of ordinary ESA.  But she must supply fit notes in support of her above new claim whilst waiting for the ban to end.

Obviously, if the original appeal is re-instated, then the DM may have to revise the original disallowance of the new claim and pay arrears of ESA to the date the new claim was made.

Hi Tom
Sorry that I did not give enough info in my post.

I assume that he did supply medical certs in support of his original claim and also with the appeal because he was receiving ESA pending the appeal.  He does not appear to have received a decision superseding the decision to award ESA pending appeal, but I can’t be sure of this and payment does seem to have ceased soon after the appeal was struck out.  Are you saying that the striking-out would not end the first claim, thus making a new claim necessary?  Sorry to be thick but I’m getting more confused by the minute.

I am working a bit in the dark as the client cannot find any paperwork relating to his appeal or earlier claim and is not good on detail.  The only document I have is the latest decision dated 13/8/10 disallowing the new claim from 1 July on the grounds that he has claimed within 6 months of the January date and cannot be assessed because he has not provided evidence (with the new claim) to show the same, deterioration or a different condition. A decision has been made that he does not have limited capability for work without any further evidence being obtained, (which they are entitled to do). He has been told that he will not be reassessed unless he appeals and this would seem to make sense.  Unfortunately the date from which the disallowance takes effect has been omitted from the decision, but I assume this is the date of the new claim and ESA DM confirmed this on the phone.

I’m still hoping that the original appeal is reinstated and if it is I will get more info from the appeal docs.

Hope this explains things.

Anne

Sorry Tom - you did say he was right to make a new claim - I need to go home before I spontaneously combust!

I think I have got things clearer in my mind now but will sleep on it.

Hi Anne

That makes a difference.

His award of ESA pending appeal would clearly have been made within 6 months of the loss of the original award.  In fact it may well have been made within a few days of that loss, depending on how quickly he submitted his appeal and sick note.  What protected the ESA pending appeal from the effect of the 6 months’ rule was the fact that he was appealing the loss of the original award.

So when that appeal was subsequently struck out, the award of ESA pending appeal lost the protection it had previously enjoyed and was exposed at that point to the 6 months’ rule.  It clearly failed that rule because the date of striking out (10/6/10) was within 6 months of the January loss of the original award. 

Prior to 28/6/10 the DWP took the view, rightly or wrongly, that failing the 6 months rule was not of itself a reason to end the award of ESA pending appeal.  Instead, their guidance stated that if the claimant did not relinquish the award, he would be subjected to a WCA without, in most cases, any further evidence being obtained.  That’s what appears to have happened to your guy.  And as a result, he has been found not to have LCW.  That is a new determination under Reg 19 ESA Regs, whose date is likely to be a few days after the notification of the striking out.

The determination allows the DM to supersede the award of ESA pending appeal. You don’t as yet know the effective date of the supersession.  But it will be the same date as the Reg 19 determination above.

They probably haven’t sent him notification of the supersession decision because they often don’t.  Instead, he’d learn of it by proxy: when there’s no money in his account.  If that is the case, the time limit for appealing the supersession hasn’t started to run.  He can simply appeal it now and, what’s more, be paid ESA pending that further appeal.

The fact he submits his appeal after 28/6/10 is irrelevant.  However, whereas prior to that date he did not need to make a new ESA claim to accompany the appeal, he has to now.  That’s because he’s appealing against a decision to stop ESA pending appeal and he didn’t have to make a claim for the latter – see Reg 3(j)(ii) Claims and Payments Regs 1987 as amended from 28/6/10.

However, the new ESA claim that he’s already made will suffice for these purposes.  Provided his appeal is accepted, that claim will be payable from whatever date he is able to get a fit note from.  If he can get one backdated to the day after the above Reg 19 determination, the new ESA pending appeal should be payable from then.

The fit note concerned does not need to show any worsening or new condition.  That’s because once again his new award of ESA pending appeal will be protected from the 6 months’ rule due to the fact he’s appealing the supersession.
 
Should the appeal against the original ESA decision be re-instated, the DM may have to revise the supersession decision.

For the above Reg 19 determination following strike out quote them para 21 DMG 7/10 (in force at the time) and for the new ESA claim pending appeal quote para 34 DMG 33/10 in force at the date of the new claim, although the reference in the latter to a new claim not being required is not correct on the facts of your case for the reasons given above.

Thanks for the further info, Tom - I think I’m getting there. 

Unfortunately I heard yesterday that the struck-out appeal will not be reinstated and no further requests for reinstatement will be reconsidered, so I’m stuck with the new claim.  The reasons given were Failure to comply/reply to correspondence and no reasonable prospect of success (that is arguable).

I get what you’re saying about getting a new award pending appeal, either of the supersession of the award pending the first appeal or of the LCW decision of 13/8/10 but on what grounds would he appeal these?  I don’t see how he could argue that the supersession of the pending appeal award was incorrect, because the appeal was struck out, thus ending entitlement by this route.  To appeal the decision of 13/8 he would have to show a change of circs or that he had not claimed within 6 months of a previous claim: his latest claim was made within 6 months of all the decisions on LCW and was for the same condition.

The DM I spoke to said that he could not be paid on the new claim until he had been reassessed, but instead of reassessing him they appear to have simply made a decision that he does not have LCW. 

He has also claimed JSA in the last few weeks, but could not tell me the date and had not had a decision last week.

Regards
Anne

I think you need to find out how they brought the award of ESA pending appeal to an end and from what date. 

If it was by a determination dated before 28/6/10, any supersession embodying that determination would carry appeal rights in the normal way.  The change of circumstances would be that the client failed the WCA which he’d had to undergo following the striking out of his first appeal.  Your new appeal would presumably dispute that WCA result and, therefore, dispute that there’d been a change of circs.

If it was a determination dated after 28/6/10, the change of circumstances would be that he is treated as not having LCW, ie, he would not have had to undergo a WCA following the strike out.  Whilst I think he could appeal that supersession it’s unclear how he could challenge a decision that deems him by law not to have LCW.  However, this type of determination treating him as not having LCW is invisible for the 6 months rule, so if they did end his ESA pending appeal this way then the new claim he makes on 1 July would be payable as soon as 6 months had elapsed from the date of the original January decision. 

The problem may be that the DM hasn’t formally brought the award of ESA pending appeal to an end, either allowing it just to peter out or assuming, wrongly, that the striking out ended it.  That’s why you need to find out. But there’s absolutely no reason why he shouldn’t be being paid ESA now.