six month rule new regualtions?

This is regards to new regulations of the six month rule where since 30 March 2105 the six month rules for reclaims after losing an appeal (ie for the same health condition) does no longer apply. Unless the current condition has got lot worse but what does this mean as if your still unfit for work with same condition how can you not reclaim ESA?

Also does this new regulation abolishing the 6 month rule only apply to first ESA claims made on or after March this year? my WCA was after march this year BUT my actual claim was first made Nov 2014 so can I re-claim ESA for same health issue if appeal should fail (six month rule)? or by the wording of this new regulation is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision.

also if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)

thanks

jasonb1123837 wrote: This is regards to new regulations of the six month rule where since 30 March 2105 the six month rules for reclaims after losing an appeal (ie for the same health condition) does no longer apply. Unless the current condition has got lot worse but what does this mean as if your still unfit for work with same condition how can you not reclaim ESA?

Also does this new regulation abolishing the 6 month rule only apply to first ESA claims made on or after March this year? my WCA was after march this year BUT my actual claim was first made Nov 2014 so can I re-claim ESA for same health issue if appeal should fail (six month rule)? or by the wording of this new regulation is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision.

also if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)

thanks

Hi jb,

"This is regards to new regulations of the six month rule where since 30 March 2105 the six month rules for reclaims after losing an appeal (ie for the same health condition) does no longer apply. Unless the current condition has got lot worse but what does this mean as if your still unfit for work with same condition how can you not reclaim ESA?"

I am afraid that if you have exhausted your appeal rights and The Tribunal still find that you are fit for work, you can make a repeat claim for ESA, but you may not receive any payment unless you can show that you are now suffering with different medical conditions, or that your existing medical conditions have "significantly worsened" to such an extent that you would now pass the ESA WCA, where you had not done so before, thus resulting in a WRAG or SG award.

When you re-claimed, The ESA DM would look at your repeat claim to see whether they considered that you could now score the requisite minimum 15 points for a WRAG award. (LCW)

The new or significant worsening of your condition must have occurred since the initial date of your fit for work decision.

Your only other option then would be to make a claim for JSA.

New rules regarding extended periods of sickness were brought in for JSA also on 30/03/15.

It is now possible to have an extended period of sickness for up to 13 weeks whilst in receipt of JSA.

What you could not do, is present a fit note when initially making a JSA claim, they would not accept your claim.

Your JSA would have to be up and running.

See : DM Guidance m9-15 on this.

"Also does this new regulation abolishing the 6 month rule only apply to first ESA claims made on or after March this year? my WCA was after march this year BUT my actual claim was first made Nov 2014 so can I re-claim ESA for same health issue if appeal should fail (six month rule)? or by the wording of this new regulation is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision."

It doesn't matter what date your initial claim was made that resulted in the fit for work decision.

The important issue is that your fresh repeat ESA claim would be made after the 30/03/15, therefore the "new" rules would still apply.

The only circumstances where the old 6 months rule still applies is where a claimant has been found fit for work due to failure to return their ESA50 Questionnaire, or failure to take part in a face to face assessment.

N.B. There is nothing to stop you making a "repeat claim", it is whether they will pay you that is at issue !!

Explanatory Memo Regarding 30/03/15 Changes To Repeat ESA Claims.

"also if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)"

If this appeal was for a fit for work decision made on a claim made after 30/03/15, and it was your first fit for work decision, you would receive Assessment Rate ESA once you have gone through the MR process and your appeal is accepted.

If this was a claim made after 30/03/15, and you had had a fit for work decision on a previous claim, you would not receive Assessment Rate ESA whilst awaiting the appeal hearing.

This scenario may occur where you have been allowed to make a repeat claim for ESA post 30/03/15 due to The DM accepting that you have a different or "significantly worsening" condition, but you still fail the WCA and are again found fit for work even when taking into account the different or "significantly worsening" condition.

Information on the following links may help with your understanding of the 30/03/15 rules :

ESA and "significant worsening" CPAG.

ESA and abolition of the "six month rule" CPAG.

I hope that helps.

Hopefully, The Tribunal will make a decision in your favour and there will be no need to worry about the above.

bro58

thanks for the detailed response bro one question pertinent to this thread out of curiosity so taking into account that one is still suffering form a current condition (though subjective lets assume it has not worsened) so he/she is still unfit for work ie to the point he/she cannot sign on properly for JSA and tries to make a re-claim for ESA within the new six month rule which came in on or after 30 march 2015 over the phone is refused then can go the MR and appeal route immediately?

also I got this quote form another forum they seem to think the new rules may only apply to those making a claim on or after 30 march 2015 though form wording of your post and other sources seems unlikely the quote may point to only exceptions but im not sure -

"The Department notes the observations made by the Committee as to the drafting of the “Application” provision (Regulation 2). The policy intent has always been that the Regulations apply solely to those making a repeat claim on or after the 30 March 2015, and we have now made amendments which we hope make it clear that this is the case. "

this is with regards to - ESA pending appeal under these new rules

quote -

ESA pending appeal

The mechanism for entitlement to ESA pending appeal is that the claimant is treated as having limited capability for work if s/he has made and is pursuing an appeal against a failure of the WCA, and has submitted a medical certificate. It has only ever been possible to get ESA pending appeal following an actual failure of the WCA – ie, not following failure to return the ESA50 or attend the WCA medical. Those rules have not been changed.

The amended rules do not completely abolish ESA pending appeal. Rather, they restrict entitlement so that, unless her/his condition has changed, a claimant who has failed the WCA more than once may not be able to get ESA pending appeal, depending on the facts of her/his case.

Following the amendments, the regulations for ESA pending appeal provide that:6
•where a claim for ESA is made on or after 30 March 2015, and that results in a WCA failure which is appealed, if that is the claimant’s first failure of the WCA, or the first since a previous decision (including by a tribunal or court) that the WCA is satisfied, s/he can in all cases get ESA pending the appeal;
•where on a claim made on or after 30 March the WCA failure is otherwise the second or subsequent WCA failure the claimant has had, s/he can only get ESA pending appeal if her/his condition has got significantly worse or s/he has a new health condition.

Where a WCA failure is subsequently over-turned by a tribunal (or court), it results in a decision that the WCA is satisfied – ie, that the claimant does have limited capability for work. So, where a claimant has successfully appealed against a WCA failure, it may well mean that the previous decision is now that the WCA is satisfied. In that case, the claimant can be entitled to ESA pending appeal for a subsequent WCA failure, even if her/his condition has not changed.7

Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure.



so as it says from above " Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure."

this means someone can get ESA pending appeal
if the claim was made before 30 March 2015 regardless?

www.cpag.org.uk/content/esa-and-abolition-six-month-rule