Appeal against ESA regulations 2008 Regulation 30 (2) (b) (I) (ii)

I wonder if someone could answer this for me.  If client goes to appeal is the appeal solely on whether his condition has deteriorated since the last WCA?

1. Client has been refused ESA under ESA regulations 2008
Regulation 30 (2) (b) (I) (ii)

2. Client first made a claim for ESA (income related) which was awarded on 18/08/2009. Medical condition was back pain

3. Client was examined by a health care professional on 18/02/2011. This medical showed that none of the descriptions in respect of either mental or physical conditions were applicable.

4. Decision was made on 9th March 2011 that client had not achieved the required 15 points in respect of the assessment. No appeal against that specific decision was made.

5. Client made a further claim for ESA on 9th March 2011. Decision maker refused the claim on 20th July 2011 because it was made within 6 months of the previous determination.

6. Client appealed the decision; the decision was reconsidered, but not revised.

7. Client appealed against the decision, stating that he had an injury that was more than a general back problem.

8. There is no evidence to show that his condition deteriorated since the last decision was made.

Also client has not provided any medical certificates throughout the period he was not being paid ESA. (I believe client was not being paid for 6 months) I think client is now being paid at assessment rate till the outcome of the appeal. 

Should client just make a new claim?

I am unclear why he would be paid the assessment phase rate pending the outcome of appeal, as the decision he is appealing against is not a WCA determination, but a decision to refuse the claim. Therefore client would be getting either JSA or ESA if he has made a fresh claim after the 6mths have elapsed.  If he has not made a fresh claim, then I think he needs to, with medical certificate and 3 months backdating request.

As far as the appeal goes, he will need evidence to show the tribunal not only that his condition had deteriorated or he had developed a new condition to come within Reg. 30 (2)(b), but that he also meets the descriptors. This includes the evidence he himself presents at the Tribunal, and corroborative evidence to show that it is likely his condition significantly deteriorated or he developed a new condition.

I am unclear why he simply did not appeal the original WCA decision in March 2011, but instead made a fresh claim shortly after – did his condition significantly change in such a short space of time?

Could it be argued that the decision of 20/7/2011 must implicitly contain a finding that he scores less than 15 points from Sch 2 to ESA Regs?

The DM considering that claim should have worked through following process:

1. Has clt got new condition or worse condition now and is he providing med certs? If so then can treat as LCW.

2. If above does not apply does client in fact have LCW?

Only if 2 is answered in the negative does the claim fall to be refused.

Once he appeals this refusal the DM considering that appeal has to either decide:

A) The DM in refusing previous claim did make an LCW determination (so clt can get ESA pending that appeal); or

B) The DM in refusing the previous LCW determination did not make an LCW determination in which case the decision is wrong and needs to be revised so as to include one etc.

So I am not sure we need to worry too much about the ESA currently in payment.

M

Martin Williams - 26 July 2012 10:11 AM

Could it be argued that the decision of 20/7/2011 must implicitly contain a finding that he scores less than 15 points from Sch 2 to ESA Regs?

The DM considering that claim should have worked through following process:

1. Has clt got new condition or worse condition now and is he providing med certs? If so then can treat as LCW.

2. If above does not apply does client in fact have LCW?

Only if 2 is answered in the negative does the claim fall to be refused…

I agree.  In fact it’s arguable that it’s not just a decision not treating someone as having LCW, eg under Reg 30, but also one treating them as not having it, eg under Regs 22 or 23 ESA, that implicitly contains a determination that they actually do not have LCW.  That’s because section 1(3)(a) WRA is only interested in whether the person has or does not have LCW.  In that sense it’s even arguable that ESA should be payable whilst appealing against a failure to attend a medical.

The problem here is whether the 20 July decision is an entitlement decision along the lines of “the claimant is not entitled to ESA because they do not satisfy section 1(3)(a) and therefore do not satisfy section 1(2) WRA.  If it is then it would also be an outcome decision under section 8 SSA and the tribunal would have jurisdiction.  It would also be possible to argue that the decision included the above implied determination. 

The normal DWP practice is to effectively place a new claim on hold in the above circs until a new medical is sat.  That way the claim subsists for the purpose of Section 8(2)(a) SSA until the new WCA is made.  The DM effectively decides that the claimant cannot be paid prior to the new WCA/medical because he doesn’t satisfy Reg 30(1).  But the latter’s obviously only a determination which is not appealable. 

So it all depends whether the 20 July decision can be classed as an outcome decision.

I suspect that, in practice, the earliest point an outcome decision is likely to be made on the new claim is 6 months’ from the date of the earlier WCA or when a new WCA is sat, whichever is the sooner.  In this case, neither of those events appears to have been in place at the 20 July which suggests the decision may only be a determination.  However, a tribunal is able to substitute any decision which a DM could have legally made on 20 July.  One such decision was carrying out a new WCA, ie the DM didn’t have to send the claimant for a new medical.  However, in order to substitute its decision it would need jurisdiction.

If the tribunal has jurisdiction, makes the WCA that the DM could have made and finds in the process that the claimant has LCW, the lack of sick notes between March and July is irrelevant.  That’s because the effect of a finding of actual LCW is that person always had LCW from the commencement of their claim.

Edit: sorry, I’ve edited this post several times - it’s complex this.

Actually I think the implicit determination doesn’t extend to a decision which embodies a determination that a person is treated as not having LCW, eg under Regs 22 & 23.  Though it still applies to a decision embodying a determination that a person is not treated as having LCW under Reg 30.

Thanks for all your input – Sorry for the delay in replying I have not been a well.

Wow I was a little confused before, now I am very confused! 

I do not know why the client chose to make a new claim for ESA instead of appealing.

Client tells me his condition deteriorated, however he made the new claim for ESA (9th March), which was the same day the WCA determination was made?  Therefore, I do not see how he can argue that his condition deteriorated.

Client tells me he did not submit any medical certificates following the new claim on 9th March 2011 because he was not being paid. 

I believe client made a further claim following the 20 July decision (after 6 months).  It appears from a further decision that he made a claim from 20 March 2012, which is now in payment.

With regard to the appeal I am not sure it would be successful, because

1)  I do not think he has sufficient medical evidence to show his condition deteriorated, and
2)  He has not submitted any medical certificates since he made his claim on the 9th March 2011

Does anyone agree or is this case more complex than I think?