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ESA claim within 6 months of failed medical
Hello
Claimant failed his medical in December 2012 and he didn’t appeal. He then claimed JSA for himself and partner. In June 2013 the JCP “advised” him to claim ESA as he mentioned being unwell. He therefore claimed ESA and put in a sick note. This was with same medical condition as earlier claim and within 6 months of failing the earlier medical.
He therefore hasn’t been paid since June and I have advised him he won’t get paid until he has his medical. He and his partner are living off their CB and CTC.
Aside from a complaint to JCP, who advised them to claim ESA rather than JSA - probably thought they were being helpful but if he had waited a few weeks more before claiming he wouldn’t be in this mess now but that’s another thread….
The thing I can’t quite find out/get my head round is:
1) If he fails this new medical and appeals when will he get appeal rate ESA from? Is it from the date he appeals?
2) Will he get appeal rate ESA backdated to date of claim in June or will he only get back to June if he passes medical/wins appeal?
Thanks
Ive had a similar one - the DWP said that the 6 month rule starts from when ESA claim closed AFTER the tribunal, which is nonsense.
The fact your client made his new claim within 6 months may be problematic.
Thoughts?
[ Edited: 14 Aug 2013 at 12:25 pm by benefitsadviser ]My understanding is that once the six months have passed, he should start to be treated as having LCW (and paid) even if the claim was made earlier.
benefits adviser - No that’s not right - 6 months definately starts from the date of the decision after the failed medical (not 6 months after tribunal decision)
MrFinch - yes I heard this too but I have never known it happen and can’t find anywhere in the regs that say so.
I think my client will get ESA appeal rate as soon as he puts appeal in (assuming he fails his next medical) but he will never get any ESA for the period June to date appeal put in unless he passes his medical or wins the future appeal.
Just want someone to agree with this and tell me where it says this in the regs!!
Thanks
MrFinch - yes I heard this too but I have never known it happen and can’t find anywhere in the regs that say so.
R(IB) 8/04, particularly paragraph 8.7.
Thats what i said Jo : that the DWPs take on the 6 month rule is nonsense regarding the date being from tribunal rather than WCA. Just more incompetence by that lot.
I had the same argument this morning before they backed down.
I know its probably a training issue, but what bothers me is that they dont even try to find out, they just give people the wrong advice and info, and only look into things when us advisers get involved.
The contempt shown for claimants is ridiculous.
Jobcentre plus JSA advisers are under pressure to get people to sign off for any reason they can to massage the figures (hence sanctions)
That still does not exempt them from responsibility though. I would write a strong letter of complaint stating that the advice given has caused financial hardship and ask for some compensation to redress some of the losses.
MrFinch - yes I heard this too but I have never known it happen and can’t find anywhere in the regs that say so.
R(IB) 8/04, particularly paragraph 8.7.
Many thanks for that. My client was mostly outside the 6 months so I will pursue using this argument. Do you just ring JCP and say start paying as 6 months is up? Can’t really appeal original negative decision because at that point he was within the 6 months.
Benefitsadviser - yes it’s outrageous. Things get messy when JCP try and advise on benefits! Like all the lone parents without R2R that they (mis) advised to claim IS.
Many thanks for your thoughts
I put a question like this a while ago, which is worth a look :-
http://www.rightsnet.org.uk/forums/viewthread/4493/
I’m afraid you’ll have to believe me when I thanked both people for their responses at the time - there were definitely two, but one seems to have disappeared. Now it looks like I’m seeing things.
That said, I don’t remember getting anywhere on this, with the local office sticking to the line of their date of claim argument. In the end, the person I was dealing with was accepted as having LCW, so they got paid anyway, but of course it won’t always work out like that.
There were definitely two Robbo. And your thread made me re-assess my view that the law had not changed from IB to ESA. So thanks again for that.
Judge Howell’s decision at para 8.7 of R(IB)8/04 relied on his earlier finding at para 8.2 that Reg 28 ICW Regs (the equivalent to Reg 30 ESA Regs) referred to “each day of claimed incapacity in the period covered by the relevant claim”
It was then simply a case of applying para 2(b) of Reg 28 which, crucially, provided as follows: “that is has not within the preceding 6 months been determined that the person is capable of work”.
So the claimant in R(IB)8/04 wanted payment from 23 May but because she’d failed the PCA on 28 November the previous year, her ban did not run out until 28 May. Judge Howell in effect took 29 May, ie the first day outside the ban, and asked “has she been found fit within the preceding 6 months?” as per 28(2)(b). The answer was no. So she could be paid IB.
However, the Dept worded Reg 30 differently to Reg 28. Instead of “it has not within the preceding 6 months” found in Reg 28, Reg 30(2) provides “it has not, within the 6 months preceding the date of claim”. The intention was to legislate out the effect of R(IB)8/04. Applying it to the facts of that case would have 23 May as date of claim for the purposes of Reg 30(2)(b). It’s therefore irrelevant that Reg 30 arguably still refers, based on para 8.2 above, to each day of claimed LCW in the period covered by the ESA claim. The 6 months according to DWP will not run from each or any of those subsequent days. Even when the ban expires on 29 May the person is still within the ban because the day that you run the 6 months back from is fixed forever in time as 23 May, ie the date of claim.
The solution according to them is either wait for a WCA or withdraw your new claim made within the 6 months and make a new one starting after the 6 months’ ban. I have a case at the UT at present in which UT Judge Wikeley, whilst granting permission on other grounds, has taken, I quote, “[an] initial and very provisional view” that the change of wording of Reg 30 is significant. I haven’t made a submission in response (the SSWP have been asked to respond first). Sadly, it looks like I’ll not get a chance to make that submission as my client has died and it’s unclear whether any next of kin wishes to take over case.
My view is that the judge’s initial view is correct. However, it should not mean that a claimant should have to withdraw their new claim. Instead, I would rely on the, albeit DLA, caselaw referred to by Judge Mesher in CIB/2689/2011 at para 16 as authority for the proposition that “date of claim” as it appears in Reg 30(2)(b) refers to every date from the date the claim was initially made to the date of the decision eventually made in respect of that claim. As we know the DWP are unable to make a decision on a new claim initially made within the 6 months’ ban until the client has sat the WCA. Consequently, R(IB)8/04 remains good law for ESA in my view provided “date of claim” does have the above meaning (Judge Mesher in CIB/2689/2011 did not commit himself on that point in the context of IB (see end of para 19).
In other words, you still count each day from 23 May until you find a day that is outside the ban, ie 29 May, and from which you then run the 6 months back. Both 23 & 29 May are capable of being, for the purposes of Reg 30(2)(b), “the date of claim”. That solution avoids the claimant having to make a new claim. If that were not the case and the claimant had to withdraw her claim made on 23rd and make a new one only from 29th, that would appear to be an example of the “useless complication of procedure and of communication” mentioned by Judge Mesher at para 19.
Edit: Actually just re-read my post again in Robbo’s thread and Reg 6(1F) C&P Regs might be an obstacle in the way of ESA being paid on any claim made on, eg, 23 May prior to the sitting of the WCA. The solution as I stated there would appear to be for DM to treat any claim initially made within the ban as an advanced claim and then for the date of claim to be reviewed should the claimant then win his WCA. Definitely need a UT decision on this.
[ Edited: 14 Aug 2013 at 08:00 pm by Tom H ]Thanks Tom, very interesting. I hadn’t noticed the difference in wording to be honest.
That does seem to change things: although I would possibly question whether the ESA ‘date of claim’ provision is within the power granted by section 8(6). But the easier answer is probably to make a new claim.
Hi Jo
I need to discuss this with you quietly, would you email me… dan DOT manville AT wolverhampton DOT gov DOT uk
I might have a nifty trick for you to get the claim into payment a bit more quickly; should know for sure whether it’s a goer in the next day or two but the forum being publicly available I’d rather not say it too loud nor share my contact’s details publicly.
Ta
Will do
My position would be that if the new claims were made more than 3 months after the last Work Capability Assessment decision the correct course of action would be to make an initial awarding decision from the first day after 6 months expires pursuant to the advance claim provisions at reg 13 SS(C&P) Regs 1987.
That in turn leaves the claim open for a Work Capability Assessment to be conducted as and when and determine limited capability for work from week 14. Once that decision is made -and a new appeal submitted if needs be- you escape the reg 30(2)(b) prevention from being deemed LCW.
The structure of Employment & Support Allowance is different to IB; there’s the assessment phase for the first 13 weeks with a statutory structure for the determination to be conducted beyond week 13. It’s reasonable to think that a decision at the outset of a claim such as this where LCW cannot reasonably be expected to be deemed within 3 months could refuse the claim outright as there’s no entitlement to benefit until the medical; if that medical’s unlikely to be within 3 months then they can’t make an award and can rightly close the claim at the outset; they can’t make an advance award pursuant to reg 13 SS(Claims and Payments) regs.
R(IB)8/04 was looking at a backdated claim; the OP was asking about a new claim; we’re in different water and the duty imposed by Commr Howell regarding the IB regime is questionable to my mind as regards ESA…
[ Edited: 28 Aug 2013 at 04:06 pm by Dan_Manville ]Hi Jo
I need to discuss this with you quietly, would you email me… dan DOT manville AT wolverhampton DOT gov DOT uk
I might have a nifty trick for you to get the claim into payment a bit more quickly; should know for sure whether it’s a goer in the next day or two but the forum being publicly available I’d rather not say it too loud nor share my contact’s details publicly.
Ta
Don’t hide nifty tricks. If it’s legal, share it…
All will become clear ;) To be honest it was a wee bit misplaced and I’m just doing the book work on it now.