Any thoughts on how a tribunal can treat an appeal as a new claim?

My client appealed a decision to stop his ESA, as the department had wrongly paid him ESA(IR) and he didnt meet the contribution conditions at the time he had put in his claim, which was in a different benefit year.  There was an overpayment, although this is yet to be dealt with.

However, at the time the department made the decision to stop his entitlement, he actually met the contribution criteria.  He then tried to make a new claim but was refused JSA and ESA, as ESA was still in payment.  He was told by the department the only option was to appeal but to ask them to reassess and send in his contribution record, which he’d had to request himself.

The department dealt with the appeal but never reassessed his benefit as requested.  They refuse to accept the appeal notice as an intention to claim benefit.  The tribunal want to disallow my clients appeal on the grounds that they have no jurisdiction to treat an appeal as a new claim.

Unfortunately, my client will only meet the contribution conditions for this period of time whilst in that specific benefit year and would be unable to meet them now.

The tribunal appear correct to disallow the appeal as it stands, as this is against a decision that he didnt meet the contribution conditions at the time he put in his claim, however he did meet them at the time the decision was made. 

If the department made a supersession to disallow ESA at that time and create an overpayment, but didnt act on a change of circumstances, to firstly reduce the overpayment and supersede the award where does this leave the tribunals decision making?

Any thoughts would be gladly welcomed…

Let’s assume as follows (putting some dates on things just to make it easier- these obviously aren’t the dates in your case but so long as I have understood things correctly you can substitute correct dates):

1. Claim for ESA made June 2009. Relevant tax years for cESA on this claim are ones ending April 2007 and April 2008. Claimant does not meet contribution conditions for those years. irESA mistakenly awarded from June 2011.

2. February 2010, DWP realise the irESA mistake and make a decision revising their earlier award fom June 2009.

3. Had the claimant first claimed in benefit year 2010, then relevant tax years would have been those ending April 2008 and April 2009. Claimant met the contribution conditions for those years.

4. Claimant does not now meet the contribution conditions (ie if claimed in benefit year 2012 the tax years April 2010 and April 2011 are no good).

Now, as to what can be done:

A. One problem you have is whether or not your client can actually say that if they had put in a claim in benefit year 2010 the relevant tax years would have been the later 2 as per my paragraph 3 above. The relevant tax years are not calculated by reference to the complete tax years before the benefit year in which date of claim sits but by reference to the complete tax years before the benefit year in which the date on which the period of LCW began sits.

B. You have to watch out as well because definition of period of limited capability for work was changed from June 2010. If your facts are before that things might be different. The definition from then excludes a period when the claimant does have LCW but is outside the time for claiming ESA (reg 2(1) ESA Regs). Difficulty is whether claimant PLCW is regarded as commencing when they actually claimed ESA or not.

C. It may be possible to argue that the correct decision of the Decision Maker would have been:

i) Revise entitlement with effect from date of award.
ii) Supersede from date on which cESA entitlement arose to award from then.

D. This is like a “closed period supersession” (with added twist that there was no entitlement from date of claim so it is a “closed period supersession with a revision” (a bit like one of those gymnastic moves with 2 somersaults and 3 twists I guess….).

E. For stuff on “closed period supersession” see this HB circular (which refers to relevant cases etc): http://www.rightsnet.org.uk/pdfs/HB_CTB_A6_2009.doc

F. Provided the PLCW issue can be overcome then the tribunal does have a power to give whatever decision the DM could have given (closed period supersession with a revision twist or something) and no new claim issue arises.

I really have my doubts about PLCW issue though.

Sorry was writing my response and didn’t see Tony’s….