ESA – limited capability to claim?

•the appeal is against a decision that the claimant does not in fact have LCW – it is not available if the appeal is against a decision ending ESA because the claimant did not attend a medical; and

•there is not a previously un-overturned decision that a claimant does not obtain sufficient points – if this is the case, then getting ESA on the grounds that an appeal is pending against a later decision is also ruled out. The DWP position now appears to accept that because no claim is needed for an ESA pending appeal award to commence, then this is still available even where the claimant lives in a universal credit (UC) full (‘digital’) service area.

•Full Service: once a claim for UC is made, there is no possibility of return to income-related ESA, even if any appeal eventually succeeds (although winning the ESA appeal will change the start date of entitlement to the LCW or limited capability for work-related activity element on UC). Because making a claim for UC will, for many claimants, leave them substantially worse off than if they had continued to claim old-style benefits, then some may prefer not to claim and just try to survive until ESA pending appeal starts, or even until winning the appeal, where there is no award pending appeal – although in this latter case they risk losing any entitlement at all for the period if the appeal is lost.

•Live Service: the gateway conditions prevent a claimant who is challenging a LCW decision, or who asserts s/he is not fit forwork, from getting UC. If a claimant does not flag this up, an award can be accidentally made. If a claim has been made but no payment yet given, advisers can alert the DWP to the fact gateway conditions are not met, so a refusal of UC decision can be made – in which case, a claim for jobseeker’s allowance (JSA) made within a month of the refusal of UC will be treated as made at the same date as the unsuccessful claim for UC. It is possible to return to ESA if UC has been awarded.

•Arguably, the decision on no worsening of health/new condition can be appealed. Although such decisions do not ‘decide […] a claim for a relevant benefit’ under section 8(1)(a) of the Social Security Act 1998, a right of appeal probably exists via section 12(1) as they are decisions ‘on a claim’ under section 8(1)(c). That was the non-binding conclusion of Upper Tribunal Judge Wright in paragraphs 43–59 of EI v SSWP [2016] UKUT 397 (AAC) (see Bulletin 255, p11).

•Complications arise if the claimant has still not been assessed at the point the six months has expired. Under the old incapacity regime, a claimant could be treated as being incapable of work once outside the six-month period and paid from that point (leaving entitlement during the earlier period to be awarded if the claimant was eventually accepted as meeting the threshold: R(IB) 8/04). However, the wording of the equivalent rule was subtly changed for ESA: whereas the old rule allowed a claimant to be deemed unfit provided the negative decision was not ‘within the last six months’, the ESA rule now requires that decision not to have been ‘within the six months preceding the date of claim’. The intention seems to have been to legislate around the earlier caselaw: necessitating a new claim to be made at the six-month point. Whether that intention has been achieved is not clear given the caselaw on advance claims for disability living allowance, which are permitted where entitlement arises ‘not more than three months after the date of claim is made'. A line of cases decide that the ‘date of claim' there means each and every day between when the claim is first received and when it is determined.1 CSDLA/852/2002, CSDLA/553/2005, CDLA/3071/2005, but see also the different approach in KH v SSWP [2009] UKUT 54 (AAC) The uncertainty in this area means the best advice in this situation is to make a new claim from the six-month point

•Where the argument is a significant deterioration in health, as opposed to a new condition, much judicial ink has been spilled in determining the extent of the worsening that must be established.2 EI v SSWP summarises at paras 35-42 One view expressed in the caselaw is that health must have worsened to the extent that it would be ‘likely’ the claimant would now satisfy the LCW threshold at an assessment, rather than that s/he would definitely satisfy it. Perhaps a better view, although not one which the caselaw nowsupports, wouldbe thatthe standardby which a significant deterioration is to be judgedis simply toaskwhether it is such that the previous work capability assessment result may now not be accurate.

•It is now common for decisions to find that no new condition or worsening exists and further determine that the claimant does not in fact have LCW by adopting the findings of a previous decision. In appeals againstsuch decisions, EI v SSWP holds that a tribunal must not consider whether there had been any significant worsening or a new condition, but can only consider whether the claimant meets the threshold of LCW. This binding part of EI v SSWP is based on the observation that the rule only allows a claimant to be treated as having LCW until such time as it is decided whether s/he does in fact have it: thus, where the decision also decides s/he does nothave LCW, then there is no space for the deeming provision to operate. This can be questioned on the basis that the tribunal stands in the shoes of the original decision maker andcan give any decision which it could have given:3 R(IB) 2/04 hence, were a tribunal to find there was a worsened condition, it could also decide that the original decision maker had wrongly exercised its power (which undoubtedly exists) to go on to determine actual LCW and unmake thatpartofthe decision. Nonetheless, EI v SSWP is binding on this point, meaning advisers will have to be prepared to actually argue for the 15 points.