New Claim to ESA during mandatory reconsideration

We have a client who has been refused ESA, she has asked for a mandatory reconsideration, since the decision 10 days ago she has managed to break her leg. She has been told that she cannot make a new claim to ESA during the MR period even if it is on the basis of a new condition.

I looked at a few places, that all indicate the advice from DWP is correct and that a new claim will only be accepted once an appeal is made.

Can anyone clarify the above and if can claim point me in the direction of the relevant Regs etc

Many thanks

As the award has been terminated why can she not make a new claim? Starting an MR doesn’t resurrect the award. If this was the case then the DWP’s advice that someone can claim JSA pending the outcome of an ESA MR would be wrong. Have a look at s8(2) of the SSA ‘98 on this and the commentary to it in the Sweet and Maxwell volumes. Reg 30(2)(b) would of course normally stop her being treated as having LCW pending application of the WCA when a new claim is made but as a new condition then 30(2)(b)(i) kicks in.

Who was it that refused to take a new claim?  A contact centre?  If so, they are not decision makers so not qualified to determine whether someone is entitled or not. If they continue to refuse to take a claim, use escalation routes and talk to someone who will.

Many thanks.

I think she was told by the JCP+ I have also heard clients say that they have been told that the claim ‘stays’ on the system so new claim cannot be made, which of course is nonesense if a decision has been made to end entitlement then there cannot be a claim at the same time.

Agree with hkrishna except the paras of Reg 30 have been re-numbered from 29/10/13.

And it is a straightforward Reg 30 case this.  The most recent version of Reg 30 is below with the bits relevant to your case in bold type.  The client’s broken leg is a bodily disablement for these purposes:

“30.—(1) A claimant is, if the conditions set out in paragraph (2) are met , to be
treated as having limited capability for work until such time as it is determined–

(a) whether or not the claimant has limited capability for work;

(b) whether or not the claimant is to be treated as having limited capability for
work otherwise than in accordance with this regulation; or

(c) whether the claimant falls to be treated as not having limited capability for
work in accordance with regulation 22 (failure to provide information in
relation to limited capability for work) or 23 (failure to attend a medical
examination to determine limited capability for work).

(2) The conditions are–

(a) that the claimant provides evidence of limited capability for work in
accordance with the Medical Evidence Regulations; and

(b) that it has not, within the 6 months preceding the date of claim for
employment and support allowance, been determined, in relation to the
claimant’s entitlement to any benefit, allowance or advantage which is
dependent on the claimant having limited capability for work, that the
claimant does not have limited capability for work or is to be treated as not
having limited capability for work under regulation 22 or 23 unless
paragraph (4) applies.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an
appeal against a decision that embodies a determination that the claimant does not
have limited capability for work and that appeal has not yet been determined by the
First-tier Tribunal.

(4) This paragraph applies where–

(a) the claimant is suffering from some specific disease or bodily or mental
disablement from which the claimant was not suffering at the time of that
determination;

(b) a disease or bodily or mental disablement from which the claimant was
suffering at the time of that determination has significantly worsened; or

(c) in the case of a claimant who was treated as not having limited capability for
work under regulation 22 (failure to provide information), the claimant has
since provided the information requested under that regulation.”

She should be paid assessment rate on the new claim. If the Mandatory recon re the original refusal comes back unchanged I’d be tempted as a precautionary measure to ask for a MR/appeal of the new claim, even though it has been awarded based on Reg 30 above, and have both appeals joined.  That prevents the DWP treating your first appeal for a limited period, running into the back of the 2nd claim.