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Advice and thoughts anyone? WRAG to SG again…..........
Hello all
Your thoughts appreciated on this one…...appeal case recently won placing client in support group on his continuous ESA claim where 365 days limit expired beginning of this year so there has been a nil award pending this appeal decision.
DWP have mis-read the decision notice and treated client as being in WRAG hence no reinstatement of contributory award - this is being corrected but client just been informed again that they will still not get any money because they are now being assessed on means-tested only as 365 days are exceeded regardless of the fact he is now in SG…........
I know its Friday but is it me??!!
Thanks
What was the nature of the decision under appeal?
Was it:
(i) the decision time limiting his ESA or
(ii) a decision refusing to supersede him from WRAG to SG where the application for supersession was made prior to day 365?
If it’s (i) how many days had the claimant been on ESA at the date of the decision? The tribunal would be standing in the DM’s shoes on that date. So if the date of decision is day 366, the tribunal would have to conclude, despite putting him in the SG, that he’s had his 365 days at the date of decision and so it cannot save his CESA award from time-limiting. The appeal should be dismissed in those circs.
If (ii) then the tribunal’s decision would stop the time limit applying, ie he’d have been put in the support group before the expiry of the 365 days. Appeal allowed.
If scenario (i) applies, did he make a new claim whilst appealing? - Reg 3(j) Claims and Payments Regs only waives the need for a new claim where someone is appealing a decision finding that they do not have LCW. That would not have been the case here (ie, the time-limiting decision under appeal does not include a determination that the person no longer has LCW). If no new claim made since time-limiting then he’d be advised to make the new claim now including max backdate of 3 months. You could argue that the tribunal’s decision to put him in SG should be respected by the DM deciding that new claim. However, the DM would not be bound to do so. If DM accepts SG status then new claim would be one of CESA under section 1B WRA 07 and would include the SC from day one. If DM does not accept SG status then new claim would not be CESA and not payable (I’m assuming he doesn’t qualify for IRESA) but that decision would be appealable. You could ask new tribunal to respect the SG determination that the old tribunal made with the result that the SC is again payable from day one of the new claim including upto 3 months backdate.
[ Edited: 6 Sep 2013 at 06:54 pm by Tom H ]So if the date of decision is day 366, the tribunal would have to conclude, despite putting him in the SG, that he’s had his 365 days at the date of decision and so it cannot save his CESA award from time-limiting. The appeal should be dismissed in those circs
I think client should get CESA if placed in support group, even tho WRAG 365 days may have ended, as long as client has LCW throughout. Here is an edit from our factsheet at http://www.disabilityrightsuk.org/employment-and-support-allowance-overview
15.1 Time limiting of contribution based ESA (CESA)
A time limit of one year will apply to your ESA if it is contributory ESA, and you are in the ‘work-related activity’ group. The 13-week ‘assessment phase’ will count towards the one-year period. The time limit does not apply to people in the ESA ‘support’ group.
There are several possibilities if your contributory ESA is terminated at the end of the 12-month payment period. In all the following situations, you will need to show that you still have limited capability for work: you will still be required to complete a limited capability for work questionnaire (ESA50) and participate in the work capability assessment where necessary.
… If you cannot get income-related ESA, you may be able to claim contributory ESA again in the future if your condition deteriorates – as long as Jobcentre Plus considers that you have continuously had limited capability for work since your contributory ESA stopped. To satisfy this, once contributory ESA ceases you should ask Jobcentre Plus to continue to assess you as having limited capability for work. Then if your condition does get worse you can make a new claim for ESA. You will probably be referred for a work capability assessment. If it is accepted at this assessment that you have limited capability for work-related activity (and can thus be moved into the support group) you can be awarded contributory ESA once more. It will last as long as you remain in the support group.
Getting into the SG reactivates entitlement, even if the one year limit had previously ended, provided the person has had continuous LCW.
It’s in section 1B of the Welfare Reform Act 2007, inserted by section 52 of the 2012 act.
..Then if your condition does get worse you can make a new claim for ESA…
..If scenario (i) applies, did he make a new claim whilst appealing?
..It’s in section 1B of the Welfare Reform Act 2007, inserted by section 52 of the 2012 act.
..If DM accepts SG status then new claim would be one of CESA under section 1B WRA 07 and would include the SC from day one…
Hmm…
Edit: Section 1A(3) WRA 07 makes it clear that time-limiting ceases the old award of CESA requring, as your fact sheet states Robby, a new claim. The DMG did at one point (I haven’t checked recently) advise DMs to invite claimants to re-claim CESA where there is evidence that they, subsequent to time-limiting, qualify for the support group. Eg, most claimants who are time-limited will continue receiving LCW credits for which attendance at medicals is still required. If one of those medicals results in client qualifying for the support group then he needs to make a new CESA claim. In Liz’s client’s case I was enquirng whether that new claim had been made. If it had been made at day 366 and the tribunal were standing in the DM’s shoes on day 366 deciding the time-limiting of the old award, the tribunal would still have to conclude that the old award had correctly ended but could award ESA from day 366 onwards. That’s simply because it would have been legally open for a DM to do the same at the date of the time-limiting decison under appeal, (ie relying on section 1B WRA). But, as I say, only where there was an undecided new ESA claim at the date of the decision under appeal.
[ Edited: 9 Sep 2013 at 07:16 pm by Tom H ]Andy, it cannot be a supersession because you need an award of ESA to supersede and there isn’t one because it ceased when it was time-limited. You cannot turn an award of credits (ie the credits you continue to receive between June 2012 and June 2013 in your example) into an award of ESA: they are completely different awards.
An update for everyone….....SG arrears awarded in full :D
Many thanks for all advice given