Reg 30 muddle

Hi folks

We all know that after losing an appeal, client can usually make fresh claim as more than 6 months have elapsed since date of original failure of WCA. But how and why does this actually work?

I thought after the appeal, the DM has to make a new decision and use the Tribunal decision to end the appeal award of ESA. As this will embody a determination that client does not have limited capability for work, why is the new claim not caught by Reg.30?

Many thanks!

That is what used to happen before Reg 147A was introduced.  Reg 147A(5) treats the person as not having LCW rather than determining that he does not have LCW.  There is a difference.  Reg 30(3) only applies to an appeal against a decision embodying the latter determination not the former.

There doesn’t seem much point appealing the decision embodying the Reg 147A(5) determination because even if a tribunal found that you actually had LCW at the date of that decision, you arguably would still be treated as not having it under Reg 147A(5).  It’s a deeming provision after all.  However, your grounds of appeal could be that Reg147A(5) did not apply because sub para (b) of that Reg was not satisfied, ie the claimant was significantly worse or had a new condition, at the date when the Reg 147A(5) determination was made.

However, as stated above such an appeal is not going to fall with Reg 30(3).

So in very simple terms, if your tribunal is unsuccessful but it is more than 6 months after the original LCW decision can you make a new claim for ESA and receive assessment rate until a new WCA?

CPAG (p211) suggests that you can and this is the advice I have been giving clients. Having read your post a couple of times Tom I think that you are saying that it is possible now but wasn’t before Reg 147A??

One bit that confuses me a little is the meaning of Reg 147A(2). Initially I thought that it meant that a LCW determination is not to be treated as having been made until the decision of the tribunal. But the other reading would be that it is saying that until the tribunal outcome is known there should not be any fresh LCW determinations (unless the client’s condition deteriorates etc.). Given the feedback from CPAG and from Tom I would assume that it is the latter?

Sorry, it is Friday and my brain is not working :s

SamW - 02 November 2012 06:23 PM

So in very simple terms, if your tribunal is unsuccessful but it is more than 6 months after the original LCW decision can you make a new claim for ESA and receive assessment rate until a new WCA?

That’s right.

SamW - 02 November 2012 06:23 PM

..But the other reading would be that it is saying that until the tribunal outcome is known there should not be any fresh LCW determinations (unless the client’s condition deteriorates etc.). Given the feedback from CPAG and from Tom I would assume that it is the latter?

That’s right.

Basically, before Reg 147A, effective from 28/6/10,  the award of ESA pending appeal had to be ended by a new decision which embodied a limited capability for work determination under Reg 19(1).  Claimants and reps alike quickly realised that by simply appealing against that new decision they could continue claiming ESA pending that further appeal.  That was because they could again be treated as having LCW under Reg 30(1) because the decision they were appealing contained its own determination that a person did not have LCW under Reg 19(1).  Hence their new claim gained the protection of Reg 30(3) again.  There was the prospect of an endless chain of appeals and new awards of ESA pending appeal.

The difference Reg 147A made was that the award of ESA pending appeal could be stopped by a simple determination under its para (5) deeming someone not to have LCW.  Reg 30(2)(b) provides that the 6 months runs from determinations made under, effectively Regs 19(1), 22 or 23.  Because Reg 30(2)(b) omitted any reference to a determination under Reg 147A(5), it meant the 6 months ran from the date of the original LCW determination, ie the one that had been under appeal, rather than from the 147A determination.

It followed that it was largely pointless appealing the Reg 147A(5) decision after you’d lost your appeal.  You’d be caught by the 6 months’ rule if your new claim was within 6 months of the determination that had been under appeal (and which, by dismissing your appeal, the tribunal had upheld) irrespective of whether you appealed the Reg 147A(5) decision.  The latter didn’t fall within Reg 30(3) so it doesn’t give you any protection from the 6 months’ rule.

Of course, it should always be remembered that the 6 months’ rule doesn’t stop you submitting a new claim within 6 months.  It just means that you cannot be paid until either the 6 months have expired, or you undergo a new WCA, or you are accepted as having a new condition or deterioration (whichever is the earlier). 

Eg, if I fail the WCA on 1 Oct 2012.  I don’t appeal but make a new claim on 2 Oct.  I am not paid.  I then fail a new WCA on 10 Dec which I appeal.  I am paid ESA pending appeal from 10 Dec.  I then win my tribunal in March 2013 and my ESA is awarded from 2 Oct 2012.  The effect of the tribunal decision is that I always HAD LCW from 2 Oct 2012.  The 6 months’ rule merely prevented me being TREATED as having LCW until the new assessment.  So many reps get that wrong.

Sorry for the delay - thanks for clearing that up Tony, very helpful!