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How does a client claim ESA at the assessment rate when their mandatory reconsideration has failed?
Hi
A client had their ESA removed for not scoring enough points at their medical. They had a mandatory reconsideration but this failed. They claimed JSA.
Obviously the client will have to sign off JSA to claim ESA at the assessment rate. What else will they need to do? Do we write to the ESA department, phone the ESA department or ring the new claims line?
Thanks
Submit the appeal and obtain MED3s.
Whether your BDC will reinistate simply at AP rate or go through new claim malarky will depend on local practice. A letter explaining the rules post MR and payment of ESA AP without a formal new claim should probably go to the local BDC, with the MED3s.
Client shouldn’t need to sign off. The award of ESA at AP should trigger JSA supersession (don’t hand in the MED3’s at the JC!!).
I have been told by the local jobcentre that the client should telephone the new claims line.
I have had a similar case, where client was unsuccessful at his ESA medical assessment and claimed JSA whilst awaiting the outcome of the MR.
MR came back as negative, and I advised the client about the appeal process and that he now had an option to ask for his ESA to be put back in to payment under the assessment rate. Client opted to stay on JSA as said that he “couldn’t cope with the messing about with his benefits again”.
Fast forward (and it literally was in this case) to the appeal - successful and support group was awarded.
The client has now been told that even though the DWP have received the decision notice from HMCTS, the onus is on him to request that his ESA claim be put back in to payment and that he needs to cancel his JSA claim.
Apparently some people “opt to stay on JSA, even when they win their appeals”.
I think there can be problems if the person doesn’t sign off - we advise claimants to check that the appeal has been registered at the ESA processing centre (it can take a little while to get from Bradford) and to submit med certs and once that is all in place to sign off JSA immediately after the next payment and then get on to ESA to chase them getting the claim up in place before the next payment is due.
We have been told very clearly by DWP at operational stakeholders that a new claim is not required - I would be interested to know if that isn’t happening or any other problems - we have a special all day ESA operational stakeholders meeting next month!!
As it wasn’t stated in your original post - your client needs to submit an appeal in order for ESA pending appeal to start.
I’ve had conflicting information as well, going from “it’ll start automatically” to “withdraw JSA claim”. As the claimant has the right to claim JSA pending appeal, it’s unclear whether submission of med3s would be sufficient to cancel JSA claim and start ESA.
As it wasn’t stated in your original post - your client needs to submit an appeal in order for ESA pending appeal to start.
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The SSCS1 has been submitted and the ESA department have confirmed that they have received notification from the Tribunal Service that the appeal has been logged.
We have been told very clearly by DWP at operational stakeholders that a new claim is not required - I would be interested to know if that isn’t happening or any other problems - we have a special all day ESA operational stakeholders meeting next month!!
I don’t suppose you’ve got minutes from that meeting have you Daphne? A copy to give to intransigent advisers would be handy.
We have been told very clearly by DWP at operational stakeholders that a new claim is not required - I would be interested to know if that isn’t happening or any other problems - we have a special all day ESA operational stakeholders meeting next month!!
Aren’t you lucky, we have not had any invites to stakeholders meetings for a few years.
Getting back to the point - we send in a new fit note for the relevant period together with the letter accepting the appeal from HMCTS and inform Burnley BDC that HMCTS have actually accepted the appeal and to put ESA back in payment with immediate effect.
The DWP did issue some general guidance last year on MR and direct lodgement - DMG Memo 20/13
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255869/m-20-13.pdf
In the memo the following example is given –
“Example 1
An ESA claimant attends a WCA and the DM subsequently determines that they do
not have LCW. The award is superseded so as to end entitlement to ESA. The
claimant disputes the decision and asks for a reconsideration. No pending appeal
award of ESA can be made and they make a claim to JSA. JSA is awarded to the
claimant. The DM decides that the decision cannot be revised and informs the
claimant. The claimant lodges an appeal with HMCTS and submits medical evidence.
They ask for ESA to be re-awarded. The award of JSA is terminated by means of a
supersession and a pending appeal award of ESA is made without the need for a
claim. ESA is awarded from the day after the JSA award ends.”
This means that there should be no need for a new ESA claim or for someone to sign off themselves.
This matches what for example Daphne and Tony have said.
Whether this is being always being adhered to by the DWP on the ground is another thing.
I hope someone can just confirm this. Where someone is transitioned from Incap and found to not have LCW, if they go through a recon during which they claim JSA, and then lodge an appeal with HMCTS, will they then be entitled to 365 of contributory ESA pending the appeal? This cl will not be entitled to income-related ESA.
The DWP did issue some general guidance last year on MR and direct lodgement - DMG Memo 20/13
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255869/m-20-13.pdf
In the memo the following example is given –
“Example 1
An ESA claimant attends a WCA and the DM subsequently determines that they do
not have LCW. The award is superseded so as to end entitlement to ESA. The
claimant disputes the decision and asks for a reconsideration. No pending appeal
award of ESA can be made and they make a claim to JSA. JSA is awarded to the
claimant. The DM decides that the decision cannot be revised and informs the
claimant. The claimant lodges an appeal with HMCTS and submits medical evidence.
They ask for ESA to be re-awarded. The award of JSA is terminated by means of a
supersession and a pending appeal award of ESA is made without the need for a
claim. ESA is awarded from the day after the JSA award ends.”This means that there should be no need for a new ESA claim or for someone to sign off themselves.
This matches what for example Daphne and Tony have said.
Whether this is being always being adhered to by the DWP on the ground is another thing.
I’ve not much time to think about it so will simply ask… What are the grounds for supersession?
A client dropped in a MR notice yesterday , stating “You have asked us to look at the decision again, and we cannot revise the original decision to disallow ESA. We have not changed our decision.There is no evidence to suggest the original decision is incorrect”
It then waffles on for a bit and states “I have disagreed with the HCP and the decision maker and awarded 15 points…..” C’mon DWP, make up your mind!
I called ESA for confirmation and was told that they couldnt reinstate the benefit nor pay arrears until the client closed her JSA claim first.
Im sure i was told last september that this sort of thing would be unnecessary and the benefit would be automatically sorted in these cases. Or maybe i dreamt it…...
I’ve found that locally to us, where it goes properly, there is no need to re-claim ESA but people are asked to contact JC+ to close their JSA claims.
However several have been told they must re-claim ESA, and having done so they’ve been told that their new claim comes within 6 months of failing the WCA so they can’t have anything etc etc.
I’ve argued the toss about this and I’ve again been advised by JC+ that there is no need to re-claim ESA but JSA must be closed.
But how many people are still being told to re-claim when they don’t need to and it will lead to further confusion….?
I removed my post earlier because there was a problem with what I was suggesting. But I was trying to make the point that whilst, as we all know, a new claim isn’t required after you’ve appealed, if you do re-claim before appealing, eg during the period when MR is still being considered, it’s arguable that you should qualify and receive payment.
That’s based on construing Reg 30 purposely. I could be wrong but I think a provision like Reg 30(3) acknowledges that it would be unfair, and possibly legally dubious, not to continue paying ESA until the result of the WCA had been independently confirmed, eg by tribunal. Reduced IS, I recall, continued to be paid until an appeal against the related IB pca was dismissed by a Commissioner. Reg 30(3) certainly restricts the “final” determination to a FtT.
Not paying ESA during the MR process does not appear to sit rationally alongside Reg 30(3) given that confirmation of the WCA result by a tribunal is an even longer way off during the MR process than the appeal one.
I think it’s possible to interpret Reg 30 in a way that keeps it consistent with Reg 30(3). It would require construing “been determined” in Reg 30(2) as “been determined including following an application for revision”. In other words, you would only fall foul of Reg 30(2) once your MR application was rejected. Until then you could be paid ESA on a new claim. When your MR was refused your protection would switch to 30(3). It would obviously need to a UT to construe Reg 30 this way as the DWP are never going to agree, especially as the whole point of MR is to make staying on ESA as hard as possible. Nice though if the UT would oblige and, in the process, send a message to the government: “this far with Welfare Reform and no further”.
[ Edited: 4 Jun 2014 at 10:05 pm by Tom H ]In support of my last post, para 15 of CIS/2654/99:
“..I agree with the holding in CIS/210/94 (Mr Lewis assured me that he had found no adverse authority on the general principle) that the “determination” of an appeal occurs only once it can be taken no farther, and not merely once a tribunal has reached a conclusion..”
Anyone got a copy of CIS/210/94?
Anyway, whilst Reg 30(3) has, for the purpose of treating someone as having LCW, obviously restricted the meaning of “determination” to that made by a FtT, I think the above extract supports the view that “been determined” in Reg 30(2) means “finally determined by a DM”. Arguably allowing a new ESA claim to qualify for payment during the MR process.
I don’t suppose you’ve got minutes from that meeting have you Daphne? A copy to give to intransigent advisers would be handy.
Sorry Dan - only just seen this - no they don’t produce minutes unfortunately - just a list of action points
Update - I’m lying - there are minutes - I’m going to try and find the right ones….
[ Edited: 9 Jun 2014 at 04:41 pm by DaphneH ]