Edward Graham explains the rules allowing ESA to be paid on repeat claims and pending appeals.
The first set of official statistics produced by the DWP on the operation of the work capability assessment (WCA) for employment and support allowance (ESA) shows a significantly higher than anticipated failure rate (see article on p. 11 for details). This article examines some of the common issues that arise when entitlement to ESA ends because of a failure to satisfy the WCA, and the options open to claimants to reestablish entitlement. The key legal provision is regulation 30 of the Employment and Support Allowance Regulations 20081which sets out the rules allowing claimants to be paid ESA pending assessment under the WCA.
Entitlement pending assessment - basic rule
Regulation 30(1) states that a claimant is to be treated as having 'limited capability for work' (the basic condition of entitlement to ESA) until it is determined whether s/he:
- actually has limited capability for work (i.e. scores sufficient points under the WCA); or
- is exempt from the WCA (e.g. because of terminal illness); or
- is to be treated as not having limited capability for work because of a failure to return the ESA50 questionnaire or attend a medical without good cause.
This allows ESA to be paid pending assessment under the WCA on an initial or subsequent claim. Regulation 30(2) then sets out the conditions which must be satisfied for the rule to apply. The first condition, in regulation 30(2)(a) is straightforward. The claimant must submit evidence of limited capability for work, normally in the form of a medical certificate from their GP.2
Bob is a JSA claimant who falls ill and is given a sick note for 6 months by his GP. He makes a claim for ESA and submits the sick note. He is entitled to the basic rate of ESA ESA pending assessment under the WCA in accordance with regulation 30.
Entitlement pending assessment - restrictions
The second condition in regulation 30(2)(b) is more complicated, and frequently causes difficulties and confusion for claimants and DWP decision-makers. It particularly applies where a person reclaims ESA after failing to satisfy the WCA. It basically prevents the rule in regulation 30(1) from applying (i.e. treating the claimant as having limited capability for work pending assessment) if, within the 6 months preceding the date of claim,3it has already been determined that the claimant does not have limited capability for work, or is treated as not having limited capability for work because of a failure to return the questionnaire or attend a medical without good cause. This is designed to stop people from reclaiming and receiving ESA within 6 months of failing to satisfy the WCA.
It is important to note, however, that regulation 30(2)(b) only prevents a claimant from being treated as having limited capability for work pending assessment under the WCA, if s/he has had a negative decision within the previous 6 months. It does not disallow a claimant from making a fresh claim or being assessed under the WCA. It only prevents payment on a reclaim within 6 months of a negative decision, pending reassessment under the WCA. This was confirmed in case law on the similar provision which related to incapacity benefit, which also decided how reclaims made within 6 month period should be dealt with.4Accordingly, the DWP:
- should not refuse a claim simply because it falls wholly or partly within 6 months of a previously negative decision;
- should arrange and apply a new WCA immediately;
- should pay ESA pending reassessment under regulation 30(1) if the new claim was made more than 6 months after the previous negative decision.
Betty claimed ESA in January 2009, but failed the WCA on 6th May. She did not appeal as she scored no points and assumed she had no grounds for appeal. She was unable to cope with claiming JSA and in October 2009 she made another claim for ESA. The DWP should accept her claim, but tell her that as it is within 6 moths of a decision that she did not have limited capability for work, she cannot be treated as having limited capability for work pending reassessment under the WCA. She will not be paid benefit until it has been determined whether she actually has limited capability for work. The DWP should arrange a new WCA immediately. If this has not happened by the 6th November (6 months from previous decision), the DWP should begin paying Betty ESA as Regulation 30(1) now applies.
Exceptions to the restriction
The rule in regulation 30(2)(b) preventing entitlement pending assessment is itself subject to exceptions. It does not apply if:
- the claimant is suffering from a new condition since the previous determination; or
- his or her condition has significantly deteriorated; or
- in the case of a failure to return the questionnaire, this has now been done.
So, in example 2 above, Betty could be treated as having limited capability for work and paid immediately if she had a new condition or her condition had got significantly worse.
Finally, regulation 30(3) states that the regulation 30(2)(b) does not apply if the claimant has appealed against a decision that s/he does not have limited capability for work and the appeal has not yet been determined by a tribunal. This allows claimants who appeal against failing the WCA to continue getting ESA until the appeal is heard by a tribunal. It only applies, however, where the claimant is appealing a decision that s/he does not have limited capability for work. It does not apply where the appeal is against a decision that s/he is treated as not having limited capability for work because of a failure to return a questionnaire or attend a medical. Claimants in this situation will only get paid once they return the questionnaire; or successfully argue that they have good cause for failing to return the questionnaire or attending the medical; or make a new claim either after 6 months, or with a new or worsened condition.
Sunil claims and is awarded ESA. He fails, however, to subsequently attend a medical, stating that he did not receive the notification letter. He appeals the refusal of ESA arguing he had good cause for failing to attend. His appeal is not against a decision that he does not have limited capability for work, so Reg 30(3) does not apply. He cannot be paid ESA pending the appeal. He makes a new claim on the same basis as his previous one within 6 months of the previous refusal. The claim must be accepted, but he cannot be treated as having limited capability for work and so cannot be paid ESA until he has been reassessed under the WCA (the DWP must arrange for a new WCA to be carried out).
Note that if a claimant of incapacity benefit (IB) fails the personal capability assessment (PCA), there is nothing in regulation 30 which prevents them from being treated as having limited capability for work for ESA. The IB decision is that the claimant is not incapable of work, whereas regulation 30 only deals with limited capability for work. They are not the same. Further, claimants who win their PCA appeals should have their IB claims reinstated, rather than being 'stuck' on ESA. Note also that in contrast to IB, there is no provision within the ESA regime for a person to claim income support pending an appeal, but s/he can claim JSA subject to the normal rules.
Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. SI 2008/794
- 2. Evidence means in accordance with the SS Medical Evidence Regulations 1976 (SI 1976/615). There is no requirement for it to be a med 3 from a GP if it is not reasonable to require the claimant to provide this
- 3. This includes any period for which the claim is backdated
- 4. See CIB/3106/2003; R(IB)1/01; R(IB)1/02; R(IB)8/04