IS to ESA

Hi,

I have a customer who is being transferred from IS to ESA.

The DWP have cancelled the IS claim as the customer failed to attend a medical for ESA (customer did not receive notifcation).  In addition,  the customer would not have been able to attend due to agoraphobia.

Would the customer be able to make a new claim for ESA as she has never been in receipt of it? 

I have been informed that if I appeal the customer will not be paid until she attends a medical (can someone confirm if this is true?). As a result, entitlement to a new claim would be most beneficial.

Any advice would be appreciated

Allan

Hi Allan

Your client could make a new claim however the failure to attend the medical would prevent payment on a new claim until they attend a medical assessment. This is because a claimant can be treated as not having a LCW if:
1. they fail without good cause to attend or submit to a medical examination and
2. they;
(a) had at least seven days’ written notice of the examination or
(b) agreed to accept a shorter period of notice whether given in writing or otherwise.
ESA Regs, reg 23(2) and (3)

ESA is not payable unless your client has (or is treated as having) a LCW.
Your client ought to appeal the decision detailing that she did not receive notification and therefore has good cause as you cannot attend something you have no knowledge of.

See (http://www.dwp.gov.uk/docs/dmgch42.pdf) for the guidance the decision maker will consider. You may also want to have a look at CSIB/721/2004 (available in briefcase section).

You may also want to seek medical evidence of your client’s agoraphobia and confirmation that she could not leave the house to attend an assessment, this may help with the good cause issue and would be useful in respect of future assessment appointment/s and her LCW.

Chaos

Many thanks, that’s really helpful.