Client fails to attend medical, then makes a new claim for ESA and fails the medical, can she claim ESA at the assessment rate?

Hi

A client had her ESA taken away in May for failing to attend a medical (she appealed that decision and lost).  She then made a new claim and has just failed an ESA medical for not scoring enough points.  Can she claim ESA at the assessment rate whilst appealing that decision?

Thanks

Yes I think so. Using hypothetical dates:

1st April - Fails to attend medical - treated as not having LCW from this point and ESA not payable.

1st July - Attends second medical - can now be treated as having LCW.

15th July - Decision made that client does not have LCW as not enough points.

1st August - Client appeals and treated as being entitled to ESA assessment rate pending tribunal decision. 

So the client should be able to receive assessment phase ESA from the 1st July (so long as they are able to provide medical certificates covering the period)

Not unless 2nd claim for different condition or substantial worsening of same. Otherwise prevented from receiving payment on any claims made within 6 months of failing to attend. Reg 30

Reg 30(3) allows payment while she is pursuing the appeal from the decision embodying a determination that she did not have LCW - so can be paid for the time after the appeal was lodged against the failed medical (the second decision).

reg 23 (2) only holds until the client actually attends the medical. As client has been to medical then it no longer bites and reg 30 (3) allows payment while the appeal’s ongoing.

Thanks for everybody’s help.