ESA appeal and subsequent new ESA claim

Hi , I hope someone can help me with the following case as I have never come across this before . I have checked out the Regs for decisions and appeals and still cannot get my head round it !  Here is the case :

* Cl fails LWCA - scored 0 points - decision dated 22/02/10. Cl appeals and remains on ESA basic rate whilst appealing .Cl now waits for new hearing date from TS .

* Cl was initially seen in June as he wanted to seek representation with his appeal . Following the interview, realised that cl was unlikley to achieve 15 points to satisfy assessment but found out that cl had made another claim within 6 months of a previous decision but on the grounds that he had a new condition. 

*The claim was accepted from 25/05 and cl informed that his medical examination was due to take place on 01/07 . Cl was advised that appeal is not worth continuing and that he should withdraw and that he he may succeed and score sufficeint points on the next medical due to new and other conditions . However, Cl was adamant to continue with appeal and did not wish to withdraw.

* Outcome of Medical examination on 01/07 - failed LCWA - scoring 6 points only, cosnequently treated as not having limited capability for work.    Decision was made on 17/07 but not notified to cl as there is an appeal pending (as DWP has informed ) .
Cl was advised that he should appeal this decision and withdraw earlier appeal . DWP are arguing that they are waiting an outcome of the appeal and therefore not implementing the decision . Also , as there is no notification of decision sent - no right to appeal !

* Tried to argue with DWP that if the cl withdraws appeal - then there will be no outcome from TS and if he does continue , an unfavourable decison will be made which means that they will apply this decision . My question is what will happen to the subsequent decision (17/07) as the cl will be left without any remedy as the time limit for appealing will have expired.
.  The DWP appear to be suggesting that cl continues with appeal and in my view , this does not appear to be correct and I feel that it is not worth continuing .  Also , tribunal will only consider circumstances to date of decision .Are th DWP trying to catch out the cl here ?

*I have looked into SSCS (decisions and appeals )Regs 1999 - Reg 3 - in particular para 5A which quotes what the DWP appear to be doing but I am still somewhat confused in what will happen in the event if the appeal does not succeed . Should cl be withdrawing his appeal so that he can appeal the subsequent decision ?

* I hope there is enough information for someone to guide and correct me with this case.

Tahra

The DWP can’t just ‘not implement’ the decision leaving it in abeyance indefinitely.  So far it is only an administrative decision but as it affects a citizen’s fundamental civil right to exercise an appeal against a withdrawal of a pecuniary advantage it must be notified to him immediately in order for him to exercise his right to a hearing before an independent and impartial tribunal. 

This is yet another example of a government department playing fast and loose with the law for the sake of its own administrative convenience.  He has a right to exercise his rights of appeal against both decisions on the two different claims and he must not be unduly delayed in the exercise of that right.  Regulation 28 of The Social Security and Child Support (Decisions and Appeals) Regulations 1999 is in the following terms:

Notice of decision against which appeal lies
    28.  - (1) A person with a right of appeal under the Act or these Regulations against any decision of the Secretary of State (or the board or an officer of the board) shall -
(a)  be given written notice of the decision against which the appeal lies;

(b) be informed that, in a case where that written notice does not include a statement of the reasons for that decision, he may, within one month of the date of notification of that decision, request that the Secretary of State (or the board or an officer of the board) provide him with a written statement of the reasons for that decision; and

(c) be given written notice of his right of appeal against that decision.

Regulation 3(5A) has no application yet, as a decision (the second decision) has no legal force until notified to the claimant (Regina v Secretary of State for the Home Department and another ex parte Anufrijeva 2003) so it is not yet a decision which is capable of being revised under the D&A Regulations.  I’d speak to someone higher up the food chain if I were you and (possibly) client’s MP.

Thank you nevip for the clarification . I will now write to a senior manager .

Although the legislation has moved on, do the principles in R(SB) 29/83 still assist?  In short, amongst other matters, it was found there was no basis on which the SB officer could refuse to make a decision - paras 12-13.

I think they are incorrectly interpreting Reg 147A(2), (3)(b), (4)(a) and (5) ESA Regs 2008 (as inserted by Social Security (Miscellaneous Amendments) (No 3) Regs 2010).

The effect of the above Reg is to treat the determination that awarded him 6pts “as if” it had not been made.  The DWP present this as a beneficial thing for the client in that it allows him to continue claiming ESA at the assessment rate whilst waiting for his original appeal to be heard.  See paras 45 and 48.1 of DMG 33/10.  It’s unclear but the implication of para 48 is that his existing ESA at the assessment rate would otherwise be payable only up to the date of the new decision, ie the one awarding 6pts.

TJi, I don’t think your client’s request to have his entitlement re-assessed for a worsening condition can be classed as a new claim.  Rather it seems it can only be a request for supersession.  After all, he already has an award of ESA at the assessment rate when his condition worsens.

Their decision of 17/7 should be a supersession decision under Reg 6(r)(i) Decisions and Appeals Reg 1999 (as inserted by the above No 3 Regs).  That decision should of course be notified to the client for the reasons given by Paul and Kevin. 

Reg 147A then allows for ESA at the assessment rate to continue whilst waiting for his old appeal to be heard despite the new supersession decision.  The client can then appeal the latter and withdraw the original appeal if he wants (alternatively, he could ask for them to be joined) and ESA should then continue to be paid at the assessment rate whilst waiting for the appeal against the supersession.  Hope that makes sense.