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Repeat Claims/Assessments
Hello
I would really appreciate some clarity around the ESA (Repeat Assessment and Pending Appeal Awards) (Amendment) Regulations 2015
I understand that where a claimant has failed to attend a WCA (and has not been found to have good cause) they will not be treated as having LCW unless they have a new conduition or their condition has worsened significantly and the six month policy will therefore remain infact for this group.
Where I’m a little unclear is twofold:
a) do those without a new/worsening condition need to wait for six months to make a new claim - and then need to wait until a new WCA before ESA is paid?
b) Is assessment rate payable for those with a new/worsening condition (again who failed to attend WCA) or is this again subject to a WCA?
Many thanks
Andrea
You might want to have a read of our Welfare Rights Bulletin articles.
ESA and abolition of the ‘six month rule
ESA and ‘significant worsening’
We’ve also got information about ESA claims and payments on our Ask CPAG Online service Can you get paid ESA waiting for a decision?
If I’m reading your query correctly, you’re asking specifically about the position of someone who fails to attend a WCA and who then makes a new claim for ESA.
If you reclaim ESA within 6 months of being treated as not having LCW on a previous claim because either you failed to return an ESA50 form or failed to attend a medical examination, you are only entitled to ESA pending a new LCW decision if your health condition has deteriorated or you have a new health condition. DWP check whether this applies by sending an ESA83 form.
If you reclaim after 6 months in these circumstances, you are entitled to ESA pending a new LCW decision.
So provided the DWP agree that someone has a new or worsened health condition and their new application for ESA is made within 6 months of the failure to attend that stopped the last ESA claim, then they should be paid the assessment rate pending the LCW decision.
And just to add, even for those who cannot show a new condition or significant worsening, the DWP must still carry out an LCW assessment. And if statisfied, this will mean that the claim then has to be paid from the date of claim.
Some claimants will be in this situation, despite our best efforts - worth asking for an expedited LCW assessment where payment cannot be made until the assessment is done. My experience is that the DWP can be quite open to this where you can show good reason (e.g. establish hardship).
My problem with this is that i have repeatedly been told by ESA call centre staff that
the WCA has nothing to do with them, and Atos/Maximus arrange them
When i quote hardship they tell me to contact medical services.
When i call MS they tell me “The clients are referred to them regards WCA by the DWP”
I do wish they would get their stories straight.
You might want to have a read of our Welfare Rights Bulletin articles.
ESA and abolition of the ‘six month rule
ESA and ‘significant worsening’
We’ve also got information about ESA claims and payments on our Ask CPAG Online service Can you get paid ESA waiting for a decision?
Paul, I remember being very impressed by the factsheets produced by Simon and the fact they came out so soon after the law changed. I think they remain the best summary of the way the law is currently operating. One minor omission is the fact a new claim within 6 months of a previous failure to return the ESA50 can be paid immediately without any worsening/new condition provided a new ESA50 is received.
I also think the Dwp’s interpretation of Reg 30 is open to challenge in several areas and am still looking for a case to take to the UT. The test used to decide significant worsening, for example, is almost certainly wrong.
Sorry Tom, thought I’d replied to you before. Thanks very much for this, we’ll look into it.
many thanks all
andrea
Hi - Unsure if this is news or old hat? Ftt decision today accepted my submission that where there is a new condition ( whether identified on med 3 or not) and claimant stated this then the appellant should be put on ESA assessment rate until assessment ( by ESA85) made. I differentiated the approach from significant worsening using both the Judge Jacobs IB decision and the DMG 10/15 and of course reg 30.