Claimants could be left without any income replacement benefit at all when challenging a decision that they are fit for work, the government has confirmed. Once the new system of mandatory reconsiderations before appeals is introduced, employment and support allowance (ESA)claimants will lose their right to be paid the assessment rate when they first challenge a decision.
Instead, they will have to try to sign on as available for work and claim Jobseeker’s Allowance (JSA) or manage without either benefit until the reconsideration has been carried out. Only once an appeal has been lodged will they be able to reclaim ESA. The decision to refuse to pay ESA during the reconsideration period was confirmed by Lord Freud on 13 February, when he told the House of Lords:
“I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard; this is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. So there will be a gap in payment. In that period-and I repeat that applications will be dealt with quickly so that this is kept to a minimum-the claimant could claim jobseeker's allowance or universal credit. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.”
However, there is no time-limit for how long the DWP can spend carrying out a mandatory reconsideration. Given the ever increasing workload and ever decreasing staff numbers, the probability of reconsiderations being carried out in weeks rather than months does not seem high.
In addition, some people attempting to claim JSA may find Jobcentre Plus staff attempting to refuse to accept their claim on the grounds that, because of their health condition, they are not available for and actively seeking work. This may be particularly the case as claimants are likely to be required to continue submitting sick notes in relation to their ESA claim whilst presenting themselves as fit for work in relation to their JSA claim. Claimants may well find themselves in the nightmare scenario of being found too fit to claim ESA but too sick to claim JSA.
Even the start date for the new mandatory reconsiderations for ESA is the subject of confusion. DWP and ministerial statements refer to a start date in April for PIP mandatory reconsiderations and October for ESA. The draft regulations, on the other hand, give a start date of 8th April for PIP and 29 April for ESA, JSA and universal credit mandatory reconsiderations. We’ll keep you posted.