Forum Home → Discussion → Work capability issues and ESA → Thread
Reg 30 query
Am finding the 6 month rule in Reg 30 difficult to wrap my head round.
Reg 30 (1) (b) appears reasonably clear that a new claim with no change in health condition made within 6 months of a fail to submit ESA50, attend medical or failed WCA decision cannot be paid anything until claimant has passed or appealed a WCA decision then they can be paid all the arrears at assessment rate back to the date of entitlement from that claim if they passed the WCA.
Once a claimant is caught in Reg 30 it seems difficult to get out of it and can end up being many months often stretching beyond the 6 months since the previous determination before a WCA decision and any payment. During this time if they are too unwell to sign on then only recourse is food banks.
I am wondering what would happen if claimant still waiting on a WCA medical puts a further new claim in once the 6 months is up. Can they then get paid assessment rate straight away on this new claim? Would this really require withdrawing the first claim- Which would presumably result in loss of any assessment rate arrears owed in the event they eventually passed WCA on the initial claim.
I have a claimant caught under the 6 month rule and the DWP said they want my claimant to withdraw their claim before they would deal with a second claim. Naturally the client doesn’t want to do this because of the potential loss of assessment rate arrears. I can’t think of any other situation where you would need to make a second claim for a benefit in order to get paid (and it wouldn’t be necessary with the equivalent IB provision because that was not set out by reference to the date of claim). Has anyone done a second claim in these circumstances and had it decided?
Also, on a slightly different tack, my claimant has recently been diagnosed with a gammy leg- a new condition. As there has been no LCW determination this surely can’t be a supersession. Could put in a new claim form but instead I wonder if it work to simply write in with a fit note showing the new or worsening condition and submitting that as the requirement under Reg 30 (1) (b) (i) has been met it invalidates the entire 6 month rule for the entire period of the claim and not just from the date the new or worsened condition commenced.
Any ideas?
If I am understanding correctly - your client has reclaimed within 6 months of an original, unsuccessful claim and so isn’t being paid until a WCA is carried out. To submit a new claim without any changes they would have to withdraw the first one but, as you say, he has had a new diagnosis so can put in a change in circumstances and should start receiving payemnts at assessment phase as he is now claiming for a different condition than the one that was originally unsuccessful.
The problem though is that in theory, a decision should have been made already after 13 weeks iro the first condition so it’s good for your client if the condition has worsened but not so good if they have got better. I have two cases that have gone on over a year now with fluctuating conditions and still no WCA. I have been on to ATOS and DWP to no avail. The saga continues. Technically the WCA is a decision by a DM based on the information available to them. The regs do not specifically state a medical examination by ATOS is required but try telling that to the DWP.
Depending on the length of time until the end of the 6 month period, sometimes it can be easier to put in a JSA claim to ensure payments and then a new ESA once the 6 months has lapsed.
Thanks for getting back on this one. Claimant suffers with agoraphobia and can’t get out to sign on. Has already failed to attend one medical causing frustrating delays getting that decision turned over at MR before it has now gone back to ATOS to await a listing for a domicilliary medical.
To submit a new claim without any changes they would have to withdraw the first one
I’ve been trying find in the Regs where it says that they have to withdraw the first claim before making a new claim. I’m probably missing the obvious here. Anyone know where to find it?
If they don’t have to withdraw the first claim then presumably the first claim would have to be treated as a closed period for any calculation of arrears owed.
For my client, who I’m seeing tomorrow, I’m inclined to not put a new claim in and instead to write in notifying them of the new condition and requesting they cease applying Reg 30 (1) (b) for the entire period of the claim on the basis that Reg 30 (1) (b) (i) is not met. So in effect I’m asking that in this case the ‘6 month rule’ does not apply at any stage of the claim because of a later new condition. See what they do next from that. They may well send out a claim form.
I think it’s difficult to find something that says you can’t have two claims running on the same benefit. The legislation for claiming ESA is in Social Security (Claims and Payments) Regs 1987, reg 4H and 4I. The nearest it comes to saying one claim has to terminate before another is made is reg 4I(2) which addresses where you have a couple, one has a claim for irESA and then the other applies - couple have to confirm in writing that they want the other one to be claimant so the first claim terminates as other one starts. The fundamental thing if is a claim is open you can’t open another one and have two claims for the same benefit running concurrently.
I think it’s difficult to find something that says you can’t have two claims running on the same benefit. .
No it’s not and it’s been satirised many times… “The Computer says No”. Who needs laws when you’ve got operational models that won’t accomodate them?