ESA: appeals and repeat claims

 

Edward Graham examines updates to the law and guidance.

In Bulletin 213 (p. 9), we examined the rules and issues relating to employment and support allowance (ESA) appeals and repeat claims, and in particular the operation of regulation 30 of the ESA Regulations 2008. Since that article was written, the DWP appears to have decided that they had failed to address many complexities and loopholes and have issued two new sets of guidance.1 Memo DMG 07/10 (February 2010) and Memo DMG 16/10 (March 2010), supplementing the guidance in Memo DMG 12/09 (March 2009)In addition, amending regulations have been laid, which come into force on 28 June.2 The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010: SI 2010 No. 840This article attempts to explain the main changes.

There is nothing to prevent a person making a claim for ESA pending an appeal against the termination of incapacity benefit (IB) or income support (IS) because of a failure to satisfy the personal capability assessment (PCA). Many claimants chose this option in preference to claiming IS at a reduced rate (less 20%) or JSA. Prior to recent amendments to the law (see below), the rule preventing payment of ESA pending assessment under the work capability assessment (WCA) only applied if the claim was made within 6 months of a decision that the claimant did not have 'limited capability for work' (as opposed to was not 'incapable of work'). DWP guidance used to state that if the PCA appeal was successful, the decision to award ESA would be terminated and IB or IS reinstated, with any arrears due paid (offsetting the payments of ESA).3 Memo DMG 12/09The guidance also pointed out that a claim for IB pending the appeal would normally be treated as a claim for ESA.

New guidance was issued in March 2010, cancelling some of the previous guidance.4 Memo DMG 16/10The new guidance is that there are actually no grounds for terminating an award of ESA on the basis of a tribunal decision that a person is incapable for work and there is nothing to prevent a person from being entitled to ESA and IB at the same time.5 The Social Security (Overlapping Benefits) Regulations 1979, SI 1979 No. 597Other rules, however, would prevent the full amount of both benefits being paid at the same time. If the claimant was getting contributory ESA, this would be paid in preference to IB, with a 'top-up' of any additional IB entitlement. If the claimant was getting income-related ESA, the IB would be taken into account as income. If a claimant was getting both types of ESA, both rules would apply. Not that a claimant cannot be entitled to both ESA and IS at the same time, so that where a person who was getting IS on the basis of incapacity claims ESA pending a PCA appeal, s/he can choose whether to stay on ESA or go back onto IS if the appeal is allowed.

The guidance makes it clear that claimants can only retain to both ESA and IB (including NI credits only on the basis of incapacity for work) for as long as they continue to meet the conditions of entitlement for each benefit. This presumably means that they must satisfy both the WCA and the PCA, although exactly how both tests will be applied to the same claimant is unclear. A claimant could, however, fail the WCA but pass the PCA and so remain on IB but not ESA.

The situation will change again, however, from 28 June 2010, when the amending regulations referred to above insert a new subsection (2)(c) into regulation 30 of the ESA Regulations. This will preclude a claimant from getting ESA pending assessment under the WCA within 6 months of a decision that s/he is capable (or treated as capable) of work. However, Regulation 30(3) is not amended, so that pursing an appeal against such a decision does not exempt the claimant from the 'six month rule'. In short IB / IS claimants who fail the PCA will no longer be entitled to be paid ESA while appealing. Their options will revert to the pre-ESA position of claiming IS reduced by 20%, or JSA.

DWP guidance issued in February 2010 covers the payment of ESA pending an appeal against the WCA.6 Memo DMG 07/10It confirms that there is no requirement to make a claim for ESA and that an award can be begin from the date of the termination decision, as long as an appeal (including a late appeal) has been lodged and medical evidence has been submitted. Where the claimant's appeal is successful, any arrears of ESA, including components can be paid. If the appeal is unsuccessful, the guidance instructs decision-makers to use the evidence to supersede and terminate the award of the ESA pending the appeal on the basis that the claimant did not have limited capability for work (unless there was a relevant change of circumstances subsequent to the date of the decision under appeal). The guidance also makes it clear, however, that the claimant has a right of appeal against this decision and against any decision refusing ESA on a subsequent ESA claim and is entitled to be paid ESA pending that appeal, in accordance with regulation 30.

This still leaves the possibility of claimants remaining indefinitely on basic rate ESA pending appeals, without passing the WCA. This anomaly has now been addressed with effect from 28 June 2010 by the amending regulations referred to above.

In particular, the regulations insert a new Regulation 147A into the ESA Regulations which states that when a claimant's WCA appeal is unsuccessful (or is withdrawn or struck out), s/he is to be 'treated as not having limited capability for work'. An appeal against such a decision is not covered by regulation 30(3) which means that ESA is not payable pending assessment under the WCA, unless 6 months have passed, or the claimant is suffering from a new or significantly worse condition. In addition, Regulation 3(j) of the Social Security (Claims and Payments) Regulations 1987 has been amended to clarify that ESA can only be awarded without a claim pending an appeal against a WCA decision to terminate an award of ESA for which a claim was made (i.e. not a previous decision to award ESA pending an appeal).

DWP guidance states that where a claimant is already being paid ESA, any new claim for ESA will be refused, unless the claimant has a new or deteriorating condition, in which case a new assessment phase will begin and the claimant will be subject to the WCA again.7 Memo DMG 07/10Where a claimant who is being paid ESA pending appeal experiences a change of circumstances which means they can be treated as having limited capability for work (e.g. as a hospital inpatient), a new assessment phase will begin. The guidance raises the issue of what happens if those circumstances cease to apply before an appeal on the first claim for ESA is heard. It says that the claimant should be referred for a WCA and suspension of ESA should be considered because the claimant can no longer be treated a having limited capability for work on the first claim under regulation 30.

This appears to be another glitch in the rules which the new Regulation 147A attempts to resolve by providing for Regulation 30 to apply, in the circumstances described above, as if the 'treated as having limited capability for work' decision had never been made, allowing the claimants to get ESA pending their appeal.

The guidance also states that if a claimant's appeal is successful and the DWP appeal the decision, both ESA awards (the one under appeal and the one paid pending appeal) should be suspended pending the outcome the appeal. If claimant appeals against a tribunal decision, both awards should be revised to disentitle the claimant from ESA. If the claimant's appeal to the upper tribunal is successful, or the appeal is remitted for rehearing, the decision-maker should consider revising the decisions.

The amending regulations omit regulation 6 of the ESA Regulations, which extended the assessment phase until an appeal was determined. Regulation 147A provides that limited capability for work cannot be determined until an appeal has been determined which extends the assessment period to that date in accordance with regulation 4.

Regulation 147A also states that where a claimant's appeal is successful, the tribunal decision shall be conclusive (save for a subsequent change of circumstances) for any other award of ESA to which the regulation applies i.e. the DWP will have to make the same decision and award the same components as were awarded by the tribunal.

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