ESA – pending appeal, without mandatory reconsideration?
Simon Osborne considers the consequences of a court decision which holds that in certain circumstances an employment and support allowance (ESA) claimant who wishes to challenge a failure of the work capability assessment (WCA) can appeal without having first to have had a mandatory reconsideration.
Introduction
Usually, a claimant wishing to challenge a refusal/termination of benefit paid by the DWP must first have that refusal reconsidered by the DWP before s/he has the right of appeal to a tribunal. That rule, set out in regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, No.991 (or for new-style ESA, regulation 7 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381), is widely referred to as the ‘mandatory reconsideration requirement’. The refused/ terminated benefit is not paid while the mandatory reconsideration decision is pending.
In ESA, some (though not all) claimants are able to be paid ESA while an appeal to the First-tier Tribunal is pending. This ‘ESA pending appeal’ provision is found at regulation 30(3) of the Employment and Support Allowance Regulations 2008, No.794 (or for new-style ESA, regulation 26(3) of the Employment and Support Allowance Regulations 2013, No.379). That provides for the claimant to be treated as having limited capability for work (and so entitled to ESA) on appeal. But it does not provide for payment of ESA while a mandatory reconsideration is pending.
One consequence of this has been that an ESA claimant who has ‘failed’ the WCA (ie, who has had the WCA applied but been assessed as not having limited capability for work) must both have a mandatory reconsideration before s/he can appeal and do without ESA unless and until s/he can get ESA pending appeal. For many claimants, this has prompted a claim for universal credit (UC) with a consequent permanent loss of income-related ESA. But this position has been changed by a court decision. Following the court decision, a claimant who would be entitled to ESA pending appeal can lodge an appeal straight away, without having to have had a mandatory reconsideration first.
So ESA pending appeal should be available straight away in relevant cases. Identifying who can benefit and what that means in practice first requires a brief review of the court decision.
The court decision
The court decision is R (Connor) v Secretary of State for Work and Pensions [2020] EWHC 1999 (Admin) (24 July 2020) (for full details, see p11). The court found that the mandatory reconsideration requirement was in breach of human rights, in so far as it denied a claimant who would be entitled to ESA pending appeal payment of ESA, because s/he had first to have had a mandatory reconsideration of the decision refusing ESA following failure of the WCA. The key part of the decision is the judge’s remedy to the breach of Mr Connor’s human rights, which was a declaration to the effect that:
‘…regulation 3ZA of the Decisions and Appeals Regulations is unlawful insofar as it is applied to ESA claimants who would, if pursuing an appeal to the First-tier Tribunal, subject to compliance with the condition at regulation 30(2) of the ESA Regulations, be entitled to receive payment pending appeal pursuant to regulation 30(3).’
The result is that a claimant who would be entitled to ESA pending appeal is able to appeal directly against the refusal/termination of ESA, without first having to have had that reconsidered in a mandatory reconsideration. It is important to note that this result is restricted to such cases; it is not authority that the mandatory reconsideration requirement is unlawful in all cases, or that all ESA claimants are able to appeal with having first had a mandatory reconsideration.
Who can benefit?
Those who can benefit are ESA claimants who:
have failed the WCA who wish to challenge that; and
would be entitled to ESA pending appeal.
That excludes non-ESA claimants (ie, it does not apply regarding failures of the WCA in the context of a claim for UC), ESA claimants refused ESA for reasons other than actual failure of the WCA (including for alleged failure without good cause to return the ESA50 or attend a medical), and ESA claimants who would not be entitled to ESA pending appeal (including ‘credits only’ cases where there would otherwise be no entitlement to ESA anyway).
Identifying an ESA claimant who has failed the WCA is relatively straightforward. Identifying such a claimant who would be entitled to ESA pending appeal can be a little more difficult. The key requirement (made by the reference to a ‘relevant decision’ at regulation 30(3) and(5) of the ESA Regulations 2008, or for new-style ESA, regulation 26(3) and (5) of the 2013 Regulations), is in effect, that this is either:
the first time that the claimant has failed the WCA; or
the first time that s/he has failed the WCA since a previous decision that s/he did not fail it.
So, for example, where a claimant has in fact failed the WCA before, but had that reversed on mandatory reconsideration or appeal, and the new failure of the WCA is the first failure since that decision, then the claimant would be entitled to ESA pending appeal. However, if this is the second WCA failure in a row (ie, without the first failure having been reversed), then the claimant would not be entitled to ESA pending appeal.
Other standard conditions for entitlement to ESA pending appeal are that the claimant has provided evidence of her/his incapacity for work (ie, usually remains covered by a medical certificate) and ‘has made and is pursuing’ an appeal. But as the decision in Connor is about where the claimant ‘would be’ entitled to ESA pending appeal, that last condition would not affect the ability to make the appeal without first having had a mandatory reconsideration.
Benefiting in practice
The Secretary of State has not sought leave to appeal against the decision in Connor. Official guidance (ADM 21/20 and DMG Memo 19/20) instructs decision makers to apply the decision – but points out, regarding ‘dual claims’ for ESA and UC where there are separate WCA decisions, that for UC, mandatory reconsideration would still be required before any appeal.1It is worth noting, however, that under regulation 39 of the Universal Credit Regulations 2013 (SI No.376) any determination that for the purposes of ‘new-style’ ESA the claimant does have limited capability for work will also mean that the claimant has limited capability for work for UC. It is understood that HM Courts and Tribunals Service has in place arrangements for accepting appeals without a prior mandatory reconsideration in relevant cases, so that they are identified, checked and admitted in accordance with the decision.
Claimants who can benefit could therefore get ESA pending appeal straight away. That would remove the need to choose between either doing without ESA pending mandatory reconsideration, or claiming UC (or jobseeker’s allowance (JSA)) instead and so terminating any income-related ESA entitlement from that point on, irrespective of the appeal outcome. In short, one consequence of the decision in Connor is to remove an incentive to claim UC (or JSA), where the claimant would otherwise prefer to remain on income-related ESA.
ESA pending appeal, where the claimant is entitled to it, is paid without the formal need for a new ‘claim’ for ESA (as provided for at regulation 3(1)(j) of the Social Security (Claims and Payments) Regulations 1987, No.1968. That is important not least because the absence of a new claim means that there should be no question of abolition of income-related ESA (ie, following a new ‘claim’ for ESA) under the rules concerning ‘natural’ migration to UC.
There is nothing to prevent a claimant from both (1) appealing without a mandatory reconsideration and asking for ESA pending appeal in the light of the decision in Connor, and (2) also submitting a mandatory reconsideration request against the refusal for WCA failure. That could be a useful tactic where there is doubt about whether the claimant would indeed be entitled to ESA pending appeal, so that if it turns out that s/he is not and so would need to have a mandatory reconsideration first, that request has already been made and no further time is wasted.
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1     It is worth noting, however, that under regulation 39 of the Universal Credit Regulations 2013 (SI No.376) any determination that for the purposes of ‘new-style’ ESA the claimant does have limited capability for work will also mean that the claimant has limited capability for work for UC. »