3 February 2010
Confused regulations combined with increasing delays in the benefits system mean that it may be possible for claimants to remain on the assessment phase rate of ESA indefinitely, even after losing one or more appeals.
ESA regulations do not allow a fresh claim for ESA to be made within six months of a decision that a claimant does not have limited capability for work, unless there has been a deterioration in the claimant’s condition or the claimant has developed a new condition.
(Correction, the paragraph above should read: "If a new claim for ESA is made within six months of a decision that a claimant does not have limited capability for work, then unless there has been a deterioration in the claimant’s condition or the claimant has developed a new condition, benefit will not be paid until a limited capability for work assessment has been carried out."
Many thanks to Tony Bowman for pointing this out)
However, a number of claimants have successfully reapplied for ESA immediately after losing an appeal against a decision that they were capable of work. They have done this on the basis that more than six months have elapsed since the original decision by a decision maker that they did not have limited capability for work.
In many cases these claims have been accepted and the claimant has immediately gone back onto the assessment phase of ESA.
In other cases, decision makers have argued that the six months runs from the date of the tribunal or from the date after the tribunal on which the decision maker makes a decision to end the assessment phase award of ESA.
However, these interpretations of the law seem highly suspect: the tribunal is not making a new decision but deciding whether the original one was correct and the decision maker is not making a new decision about limited capability for work but only about ending an award of the assessment rate of ESA. The decision about when the six months runs from is itself an appealable decision
The DWP are expected to issue formal guidance in the near future to decision makers about how they believe the law should be interpreted and whether, in their view, it is possible to claim ESA at the assessment phase rate indefinitely. If they decide that it isn’t there will undoubtedly be appeals to the first tier and upper tribunal, and perhaps beyond, before the matter is settled.
In the meantime, it should also be borne in mind that claimants have to continue producing sick notes whilst appealing, so will need the continued support of a GP who genuinely believes that they should not be forced onto JSA or back into work.