ESA – limited capability to claim?

Issue 258 (June 2017)

Employment support allowance (ESA) stops in certain situations, including where the claimant does not have limited capability for work (LCW) or is treated as not having LCW following failure to attend a medical examination without a good reason. Martin Williams takes a closer look.

ESA while appealing

ESA is available because an appeal is pending and the claimant produces medical certificates only where:

  • the appeal is against a decision that the claimant does not in fact have LCW – it is not available if the appeal is against a decision ending ESA because the claimant did not attend a medical; and
  • there is not a previously un-overturned decision that a claimant does not obtain sufficient points – if this is the case, then getting ESA on the grounds that an appeal is pending against a later decision is also ruled out. The DWP position now appears to accept that because no claim is needed for an ESA pending appeal award to commence, then this is still available even where the claimant lives in a universal credit (UC) full (‘digital’) service area.

Universal credit

If claimed, UC replaces income-related ESA. As payment of UC will not, without an advance payment, be made until five or six weeks after a claim, by which time those who could get appeal-rate ESA may have got to appeal stage, sometimes there is no point in making a UC claim while appealing.

For those who cannot get ESA while appealing, or are not at that stage, the question as to what support they can obtain depends on whether they live in a full or live (‘gateway’) service area (an official list of jobcentres operating the full service and a postcode check.

  • Full Service: once a claim for UC is made, there is no possibility of return to income-related ESA, even if any appeal eventually succeeds (although winning the ESA appeal will change the start date of entitlement to the LCW or limited capability for work-related activity element on UC). Because making a claim for UC will, for many claimants, leave them substantially worse off than if they had continued to claim old-style benefits, then some may prefer not to claim and just try to survive until ESA pending appeal starts, or even until winning the appeal, where there is no award pending appeal – although in this latter case they risk losing any entitlement at all for the period if the appeal is lost.
  • Live Service: the gateway conditions prevent a claimant who is challenging a LCW decision, or who asserts s/he is not fit forwork, from getting UC. If a claimant does not flag this up, an award can be accidentally made. If a claim has been made but no payment yet given, advisers can alert the DWP to the fact gateway conditions are not met, so a refusal of UC decision can be made – in which case, a claim for jobseeker’s allowance (JSA) made within a month of the refusal of UC will be treated as made at the same date as the unsuccessful claim for UC. It is possible to return to ESA if UC has been awarded.

Missed medicals and reclaiming ESA

Someone who has missed a medical examination can again be treated as having LCW and thus entitled to ESA on a new claim, pending assessment, where the claim is made more than six months after the decision that s/he was fit for work (a new claim for income-related ESA is not possible in a UC full service area). The six months is measured from the day of the initial decision s/he did not have good reason for failure to attend rather than from the date of any revision or appeal against that decision.

S/he can also be treated as having LCW before the six-month period has elapsed if s/he has a new or significantly worsened health problem, since the decision s/he failed to attend was made (see below).

Where a new claim is made before the six-month period has expired and it is decided the claimant’shealthhasnotworsened, then the decision on entitlement under that claim is deferred pending the actual assessment (which usually means a wait for a medical examination). Note:

  • Arguably, the decision on no worsening of health/new condition can be appealed. Although such decisions do not ‘decide […] a claim for a relevant benefit’ under section 8(1)(a) of the Social Security Act 1998, a right of appeal probably exists via section 12(1) as they are decisions ‘on a claim’ under section 8(1)(c). That was the non-binding conclusion of Upper Tribunal Judge Wright in paragraphs 43–59 of EI v SSWP [2016] UKUT 397 (AAC) (see Bulletin 255, p11).
  • Complications arise if the claimant has still not been assessed at the point the six months has expired. Under the old incapacity regime, a claimant could be treated as being incapable of work once outside the six-month period and paid from that point (leaving entitlement during the earlier period to be awarded if the claimant was eventually accepted as meeting the threshold: R(IB) 8/04). However, the wording of the equivalent rule was subtly changed for ESA: whereas the old rule allowed a claimant to be deemed unfit provided the negative decision was not ‘within the last six months’, the ESA rule now requires that decision not to have been ‘within the six months preceding the date of claim’. The intention seems to have been to legislate around the earlier caselaw: necessitating a new claim to be made at the six-month point. Whether that intention has been achieved is not clear given the caselaw on advance claims for disability living allowance, which are permitted where entitlement arises ‘not more than three months after the date of claim is made'. A line of cases decide that the ‘date of claim' there means each and every day between when the claim is first received and when it is determined.1 The uncertainty in this area means the best advice in this situation is to make a new claim from the six-month point

DWP computer systems cannot cope with two claims, so one of them should be dealt with clerically

Reclaiming ESA due to a new or worsened condition

In all cases, a claimant can be treated as having LCW, and therefore get ESA, if a new claim can be made where either her/his health has significantly worsened or s/he has a new condition from which s/he was not suffering when it was decided s/he did not have (or was treated as not having) LCW – appeal rights against refusals to do this are discussed above. Note:

  • Where the argument is a significant deterioration in health, as opposed to a new condition, much judicial ink has been spilled in determining the extent of the worsening that must be established.2 One view expressed in the caselaw is that health must have worsened to the extent that it would be ‘likely’ the claimant would now satisfy the LCW threshold at an assessment, rather than that s/he would definitely satisfy it. Perhaps a better view, although not one which the caselaw nowsupports, wouldbe thatthe standardby which a significant deterioration is to be judgedis simply toaskwhether it is such that the previous work capability assessment result may now not be accurate.
  • It is now common for decisions to find that no new condition or worsening exists and further determine that the claimant does not in fact have LCW by adopting the findings of a previous decision. In appeals againstsuch decisions, EI v SSWP holds that a tribunal must not consider whether there had been any significant worsening or a new condition, but can only consider whether the claimant meets the threshold of LCW. This binding part of EI v SSWP is based on the observation that the rule only allows a claimant to be treated as having LCW until such time as it is decided whether s/he does in fact have it: thus, where the decision also decides s/he does nothave LCW, then there is no space for the deeming provision to operate. This can be questioned on the basis that the tribunal stands in the shoes of the original decision maker andcan give any decision which it could have given:3 hence, were a tribunal to find there was a worsened condition, it could also decide that the original decision maker had wrongly exercised its power (which undoubtedly exists) to go on to determine actual LCW and unmake thatpartofthe decision. Nonetheless, EI v SSWP is binding on this point, meaning advisers will have to be prepared to actually argue for the 15 points.

Jobseeker’s allowance

Where ESA is not available and a claim for UC can be avoided, claimants are sometimes told they cannot claim JSA instead or are advised to end JSA awards if they show a valid medical certificate. That is wrong, as unless a claimant can be treated as having LCW, the medical certificate is not capable of meaning s/he has LCW and so not entitled to JSA.

 


Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. CSDLA/852/2002, CSDLA/553/2005, CDLA/3071/2005, but see also the different approach in KH v SSWP [2009] UKUT 54 (AAC)
  • 2. EI v SSWP summarises at paras 35-42
  • 3. R(IB) 2/04