We have received a few queries recently about claimants who have been refused payments of ESA pending their appeal where they were expecting their ESA to be re-instated.
Unfortunately it appears that the DWP are correct.
The only claimants who can get their ESA reinstated when they are appealing a ESA decision are those:
- Who have been 'found fit'* for work and either:
- this is the first ever decision regarding their work capability, or
- the previous decision on their work capability was that they did have a limited capability for work ie that that were 'unfit for work'.
*ie didn't score enough points nor fall under any of the exceptional circumstances.
NOTE: Where a claimant has failed to return their ESA50, or failed to attend their medical and they are appealing that decision, then they cannot get ESA reinstated.
Back in 2015 when the 'repeat claim' rules were introduced -which look at who can get paid ESA whilst awaiting a Work Capability Assessment -there was also a change to the rules on which claimants can get ESA reinstated whilst awaiting the outcome of an appeal. Indeed the amending Regulations were called The ESA (Repeat Assessments &Pending Appeal Awards) (Amending) Regulations 2015 - click here.
But this is the first time we have become aware of such changes causing a problem. Perhaps the DWP have issued new guidance to staff. Or this may have become an issue because, in Full UC Service areas, those found fit for work have been trying to avoid having to claim Universal Credit - but as they cannot claim JSA whilst awaiting the outcome of the appeal,are being left with no income at all and so are seeking advice.
Anyone trying to avoid Universal Credit and hoping to get payments of ESA reinstated whilst awaiting their appeal should be aware of this!!
So,where the claimant is appealing a ‘found fit for work’ decision, you need to consider whether there has been a previous decision on their limited capability for work and what that last decision was, ie. the last time the DWP made a determination regarding the claimant's capability for work. If it was also a ‘found fit for work’ or 'treated as fit for work' decision then the claimant cannot be paid ESA whilst appealing the current 'found fit for work' decision.
They can still appeal the decision, but may need to consider making a claim for Universal Credit (if they live in a Full/Digital UC Service area) or Income Based Jobseekers Allowance (if they live in a Live/non-digital Service area).
NOTE: The 'repeat claim' rules work differently during the assessment phase (whilst the claimant is awaiting their Work Capability Assessment) compared with whilst someone is awaiting their appeal hearing. The rules allow payment of ESA for those who have a new or significantly worse medical condition during the assessment phase, but this rule does not apply to those awaiting an appeal.
More information, examples and a flowchart here.