Caselaw on claims

Hiya,

I seem to remember some caselaw that dealt with the question of when a claim was made- the Commissioners used to use phrases which said (for example) that when a claim was submitted on say 1 January but not determined until say 1 March then in effect the claim was made for each and every day from 1 January to 1 March (it was “continuously speaking” for that period).

It is relevant to the wording in Reg 30(2)(b)(ii) of the ESA Regulations 2008- which refers to it not having been determined within the “6 months preceding the date of claim” that a claimant is to be treated as not having LCW for failure to attend a medical examination.

The previous wording of the old IFW Regs did not have the “date of claim” phrase and led to caselaw like R(IB)8/04 which dealt with situations where a claim was made within the 6 month period but determined outside the 6 months and could be awarded on basis of claimant med certs being provided for any day after the six month period.

I think the new wording is designed to prevent that but leaves claimants in ridiculous situation where they have made a claim within the 6 months and that not decided and then they are told they cannot make another new claim after six months unless they withdraw the old claim.

Anyone who can remember the old cases it would be great if you could let me know the references.

I know it might be a bit of a stretch to argue that “date of claim” in Reg 30(2)(b)(ii) means not just date on which claim submitted but also each and every day until claim determined but such a solution would avoid the sort of ridiculous situation claimants in this situation experience- the caselaw might help.

Thanks.

Martin.

Would KH v SSWP [2009] UKUT 54 (AAC) - (CDLA/59/2009)  help?  Also, read the commentary to reg 13A of the Claims & Payments Regs in Rowland & White, Vol III of The Legislation.

see post 8 here.

I’m not sure there’s been any further caselaw since that discussed by Judge Mesher in CIB/2689/2011.

Re-reading linked post 8 again, I think I was wrong to suggest there that you could, at very least, treat any claim made within 6 months as an advanced claim.  That’s because you wouldn’t know whether you were entitled at the point you made such a claim (hence the DM refers you for a new WCA), whereas an advanced claim could only be considered under Reg 13(1) C&P 1987 if you definitely did not satisfy the entitlement conditions at your initial date of claim.  I know you’re not necessarily talking about advanced claims Martin and, instead, are suggesting (I think) like I did in the linked post 8 that there could, in effect, be several dates of claim in respect of the one claim, ie for each day from the initial date of claim until the date of decision.  However, I think the caselaw reviewed by Judge Mesher above which includes a brief discussion of KH to which Ruth refers, seen in context is not suggesting that there can be more than one date of claim.  Rather, it is suggesting that you may be able to choose your “date of claim” from several potential dates available.  Certainly, Reg 6(1F) C&P Regs’ reference to “the first date” of an ESA claim does imply that there can, ultimately,  be only one date of claim.  At the end of linked post 8 I think I realised that asking for the existing claim (made within 6 months) to be treated as an advanced claim was the most realistic option, although as stated above, that was wrong as an advanced award does not appear possible in the present context due to the wording of Reg 13(1)C&P. 

The only option would, therefore, appear to be to make a new claim if a WCA hasn’t been decided after 6 months but that shouldn’t require the old one to be withdrawn.  That issue has been discussed on Rightsnet previously.  But it might be worth going along with the DM’s suggestion of withdrawing the old claim where such a claim was made more than 3 months after, eg, the last failure to attend a medical or, for pre 30/3/15 rules’ cases, a failed WCA.  In linked post 8 I mentioned a case I was taking to the UT which didn’t materialise sadly due to the client’s death.  Judge Wikeley in granting leave had suggested that as long as the date of claim was more than 6 months, it didn’t stop arrears of ESA being paid on that claim for upto 3 months even if that included a period within the 6 months.

Eg, (1) Decision dated 5/2/15 stops ESA for failure to attend medical.

(2) New claim made on 10/5/15

(3) 6 months expires on 5/8/15, ie (6 months after 5/2/15)

(4) As a WCA has still not been carried out on the claim in (2) by 5/8/15, claimant asks DM to pay her ESA from 6/8/15.  DM says he will provided she withdraws the claim in (2) and makes a new one.

(5) Ok, she says and makes a new claim whose “date of claim” is 6/8/15, ie outside the 6 months.  It’s awarded but she is entitled to ESA from 13/5/15 (ie 3 months backdating to 6/5/15 + having to re-serve 7 waiting days), despite the fact that that period is clearly within the 6 months’ ban.  That’s simply because the DWP can’t have its cake and eat it.  As long as the date of claim is outside the 6 months, there seems nothing preventing the period of limited capability for work and payment commencing within the 6 months.  I can dig out Judge Wikeley’s leave decision if you like.

I had thought about the above caselaw Martin recently when reading a different thread under Universal Credit which you contributed to.  It was the one where all that seemed to matter was whether the Gateway conditions applied at the date of claim which seemed to produce the absurd result in some cases where if those same conditions were not still satisfied by the date of decision awarding UC you were still caught by the Gateway.  I thought you might be able to argue in those circs that “date of claim” could be any one of the days down to the date of decision as in CSDLA/852/2002 (see the commentary to Reg 13A C&P Regs 1987 in Vol 3).  Problem might be that you do satisfy the Gateway conditions at the initial date of claim and that might be enough to prevent the advance UC claim provision in C&P 2013 from applying just as it would Reg 13(1) C&P, although I’ve not looked at the former.