ESA decision reassessment in 12 mths

When some is successful at an ESA hearing and the Tribunal recommends that it is not reassessed for 12 months- which date is ment by “not reassessed for 12 mths” is it from the date of the successful tribunal decision hearing on 28/9/12 or from the date that the ESA stopped on 17/1/12, assessed medical was 23/12/11 ?

thanks

Given that it takes many months for a tribunal hearing, it would make sense if the 12 months in your example ran from the date of the tribunal hearing.  Otherwise, the tribunal’s recommendation would be worth very little.  However, even if it does run from the hearing date, it is only a recommendation and the DM is not bound to follow it.  Reg 19(7) & (8) ESA Regs decide when a person can be re-assessed.  Sub para (c) of 19(8) sets the minimum time limit for re-assessment in the normal course of events as 3 months “since the date on which the claimant was determined to have LCW or to be treated as having LCW”.  In other words, 3 months from the date of the decision under appeal rather than 3 months from the date of the tribunal hearing.  That’s why so many people find themselves being re-assessed almost straight away after a successful tribunal.

There is a legal argument which I’ve been looking at recently which is that most re-assessments of ESA originally awarded by a tribunal are arguably invalid because DMs do not appear to make determinations of LCW re the awards of ESA pending appeal, so that the 3 months required by 19(8)(c) has not started to run by the date of the reassessment. Eg,

(1)  Person claims ESA on 6/1/12.
(2)  ESA stopped by a decision dated 1/8/12 which embodies a determination that person does not have LCW.
(3)  Appeals and is awarded ESA pending appeal from 1/8/12.  This is a new award of ESA not a continuation of the old award.  The person is treated as having LCW whilst appealing by virtue of Reg 30 ESA.
(4)  Wins at tribunal on 1/10/12.  Tribunal replaces the determination in (2) above with a determination that the person has LCW.  Arrears of the WRAC are awarded from wk 14 of the claim until 31/7/12, ie the day before the award in (3). 
(5) In order for WRAC arrears to be paid from 1/8/12 onwards, the decision in (3) needs to be revised.  The provision for doing this is Reg 3(5E) Decisions and Appeals Regs.  The award in (3) is revised so that it now embodies a determination that the person has LCW.  It had previously merely treated the person has having LCW under Reg 30.  Now, it’s this determination that the DM does not appear to be making.  Instead, he appears to be relying on the tribunal’s LCW determination.  Whilst Reg 147A(6) ESA Regs allows the DM to treat the tribunal’s LCW determination as conclusive, it doesn’t allow him to treat it as a substitute for making a new determination himself.

Without the new LCW determination the 3 months arguably cannot start to run.  If would follow that most re-assessments are invalid.  In the above example, if the DM attempts to re-assess the claimant from 30/11/12 arguing that it’s more than 3 months since the date of the determination in (2), the argument would be yes but the 3 months has to run from the date of the determination in (5) and where is that determination?  Whereas the effective date of the tribunal’s determination is 1/8/12 (ie, it merely replaces the determination in (2)), the date of the determination in (5) could not possibly be until after 1/10/12 (ie, after the tribunal hearing).

Edit: A problem with the above argument is that Reg 147A(6) could be construed as allowing the original determination as replaced by the tribunal to act as the basis of the revised award of ESA pending appeal, ie without the need for a new determination at all.  However, if that is correct, the references to an LCW determination in Regs 5(4)(b), 7(2) and 147A(2) ESA Regs would not make sense at all.  That is why I think a new determination is still needed, albeit one that will in most cases simply be a repetition of the LCW determination made by the tribunal.  The exception being where Reg 147A(7) applies. 

Given sub para (b), like (c) of Reg 19(8) ESA Regs pre-supposes that the last previous LCW determination that should have been made has been made, only sub para (a) would remain on which to ground the ESA re-assessment, but that sub para expressly requires a change in the person’s clinical condition, something which in IB was not always easy for the DWP to prove.

bit of an aside, but what action constitutes starting to reassess the claimant - is it when they are sent the ESA50? I have a couple of IB transfer cases who seem to have been sent ESA50’s very hastily after their positive transfer decisions

Tom H - 01 October 2012 06:24 PM

Given sub para (b), like (c) of Reg 19(8) ESA Regs pre-supposes that the last previous LCW determination that should have been made has been made, only sub para (a) would remain on which to ground the ESA re-assessment, but that sub para expressly requires a change in the person’s clinical condition, something which in IB was not always easy for the DWP to prove.

Interesting argument, Tom, but isn’t the problem that sub-para (a) allows re-determination where the SoS ‘wishes to determine whether there has been a relevant change of circumstances’? Not quite the same as needing to show that there has actually been a change to start gathering evidence, I have always thought…

Jon Shaw - 02 October 2012 10:26 AM

..but isn’t the problem that sub-para (a) allows re-determination where the SoS ‘wishes to determine whether there has been a relevant change of circumstances’? Not quite the same as needing to show that there has actually been a change to start gathering evidence, I have always thought…

Jon, interpreted literally yes but if that interpretation was correct it would make sub paras (b) and (c) otiose.  I think it’s implicit that a re-assessment based on sub para (a) would require there to actually be a change of circs once the investigations were completed.

Re Seand’s point about when those investigations may begin, a re-assessment by definition requires there to have been a previous LCW determination that the person does have LCW or treating them as having LCW under any of the provisions in Reg 19(7)(b).  So any investigations with a view to re-assessment cannot similarly commence until a person has been determined to have/be treated as having LCW.

However, Reg 19(7) doesn’t appear to prevent the DM investigating a person’s entitlement to an award of ESA pending appeal, eg requiring claimant to complete a new ESA50 or attend a further medical before the tribunal hears the appeal against the original decision.  Reg 147A(2) ESA Regs delays when any further determination based upon the new investigations can be made, rather than preventing the investigations being made at all.  It still falls to be determined whether you have LCW whilst you’re receiving ESA pending appeal.  Otherwise you couldn’t be treated under Reg 30 as having LCW pending that appeal.

In my original example, once the tribunal allows the appeal, the DM should in theory make a new LCW determination (re the award of ESA pending appeal) dated a few days after receiving the tribunal decision (say, 4/10/12 in my example).  There would appear nothing stopping him issuing an new ESA50 the day after that (ie, 5/10/12), but no new LCW determination under Reg 19(7) could be effective until 3 months since the last determination (ie 4/1/13).

I

dcp - 02 February 2013 04:43 PM

I

Claudius?