ESA pending appeal + new claim for ESA & a great big mess

Hi,
Please can anyone help / point me in right direction. Situation is:

ESA medical failed for PTSD in Nov 11 - appeal in and pending, no date but appeal papers arrived April 12.

Meanwhile back in Feb 12 appellant has severe break to leg, hospitalised for 9 days, discharged home with pain killers.
Appellant missed sending in sicknote and was referred for welfare rights advice by hospital. Advised to make new claim for ESA for broken leg. On this advise, made new claim, paid at assessment phase rate, provided sicknotes for this claim, completed ESA50 and was then called in for a medical. As 6 months had passed since break to leg and had now recovered, he rang ATOS and said he wasn’t gpomg to attend as he had now fully recovered from a break.

Consequently he has no benefit income, and he has tried to discuss this by phone with ESA dept but is getting nowhere. They maintain he is not entitled to ESA as he failed to attend a medical.

I know that he can claim ESA pending an appeal, but has the 2nd failed claim put a spanner in the works? Can he still claim pending the appeal.

Thanks :)

efloyd - 28 September 2012 09:58 AM

..I know that he can claim ESA pending an appeal, but has the 2nd failed claim put a spanner in the works? Can he still claim pending the appeal.

Yes, he can claim ESA pending appeal.  His appeal against the original WCA failure is still outstanding so any further ESA claim he makes now has the protection provided by section 30(3) ESA Regs, provided he supplies current sick notes.

They should really revise the earlier termination of ESA for failure to submit sick notes because the law did not require a sick note for the period he was a hospital in-patient and recovering from hospital treatment. 

They should also revise the termination of ESA for failure to attend (FTA) the medical.  There was a thread some time back which argued that you couldn’t be sent for a new medical whilst waiting for an appeal against a failed WCA. That was because Reg 23 which governs when you can be sent for a medical only applies “where it falls to be determined” whether you have LCW.  And it didn’t fall to be determined whilst you’re appealing because Reg 147A prevents a new LCW determination until the appeal is heard.  I’m not so sure about that argument anymore, although I was persuaded by it at the time.  That’s because Reg 30, under which most people are treated as having LCW whilst appealing, itself only applies where it falls to be determined that you have LCW - see section 8(5) WRA 07.  So to say you cannot be sent for a medical whilst appealing would be tantamount to saying that you cannot be treated as having LCW pending appeal either, which wouldn’t be right.  The reason they should revise the FTA decision is that Reg 147A(4)(a) ESA Regs requires any new FTA determination made pending the appeal to be treated as if it had not been made.

I’d ask the DM to send this one to Leeds for advice.  It’ll be way beyond the local office.

Thanks Tom. This helps although I suspect this will take a while to sort out! As you say the local office will not have a clue.
Regards

Elaine :)