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Absence abroad for medical treatment at start of ESA claim
I need to check if I am missing something.
I have a man who is going to Switzerland for proton treatment as it is not available in the UK and his SSP is due to cease whilst he is out of the country.
He initiated his claim to ESA on an advanced claim to benefit and the DWP allowed him to make the claim over the phone. The claim was then closed by them stating he could not claim until 11/2/16. On querying this with the DWP it is because their computer system cannot input a claim more than 31days in advance. The DWP were going to hold the claim until they were able to input it but have said that they can’t do this because he will not be entitled when his SSP ceases because he is not in the country.
It seems that if he had been in the country and entitled to ESA THEN went for treatment abroad he would have been ok, but because he is not in the country on his date of claim he is not entitled.
I have had a look at the regs and can only see concessions for seamen and aircraftmen on the continental shelf in Sch 2 paras 5,6,7 and 8, but can see no concession for treatment abroad.
Am I missing anything?
Anne
Reg. 13(9) Social Security Claims & Payments Regs 1987 and reg. 34 Universal Credit, PIP, JSA & ESA (Claims & Payments) Regs 2013 both make clear that a claim for ESA can be made up to three months in advance.
If the DWP’s computer system will only allow it to input 31 days in advance, then tough for them - the rules is the rules.
Make a paper claim and send it in by PO special delivery/signed for so DWP cannot question receipt of claim. Point out the regs.
Reg. 13(9) Social Security Claims & Payments Regs 1987 and reg. 34 Universal Credit, PIP, JSA & ESA (Claims & Payments) Regs 2013 both make clear that a claim for ESA can be made up to three months in advance.
If the DWP’s computer system will only allow it to input 31 days in advance, then tough for them - the rules is the rules.
Make a paper claim and send it in by PO special delivery/signed for so DWP cannot question receipt of claim. Point out the regs.
They are happy to take the claim but they are saying he is not entitled due to the fact he is out of the country for treatment.;
Didn’t realise he had already gone (it was the “I have a man who is going to Switzerland for proton treatment….” in your o/p) - that would stuff things.
When did he go?
Off the top of my head, isn’t there a UT decision that says that for the purposes of an advance claim, a claim can be treated as made on each day of the relevant period; or some such thing.
Were you thinking of CIB/2689/2011? Holds that an advance claim is ‘continuously made’ until it is determined? Not sure how this would enable him to get around the requirement of needing to actually be present in the UK on the day entitlement begins/the claim is treated as being made?
Sorry, I probably have confused everyone with the story.
He is currently on SSP.
He is due to start proton therapy on 1/2/16 until 23/3/16 in Switzerland. This is funded by the NHS because they do not do it in this country.
His SSP ceases 2/3/16 and he will be out of the country on this date.
He thought he could put in an advanced claim - which he did - and the DWP were happy to take it.
There was a slight hitch in that he got a text saying he needs to reapply after 11/2/16 and when I phoned the DWP this was because they could not input the claim because their computer system is rubbish basically. The DWP were more than happy to accept it as an advanced claim and hold it until it was able to be input. When negotiating that they did this for the client, they said he will not be entitled to ESA until he returns from Switzerland.
If he had been in receipt of ESA before leaving the country it would be straight forward, his ESA would continue as he was leaving for treatment. BUT because he is not in receipt of benefit he has to be physically present in the UK to satisfy the conditions of entitlement to ESA and this will only happen when he comes back from Switzerland!
So what I need to know is, is there any provision in the regs that gets round the problem of him not being in the country and then being entitled to ESA. If he had been able to get the treatment in GB he would be here, he is only out of the country because the NHS don’t do the treatment
Reply to PC’s post
Depends when he’s coming back.