Benefit during an employment and support allowance dispute
David Simmons examines the issues and options which arise in relation to the payment of benefit during a dispute about whether a claimant has limited capability for work.
Appeals against decisions that claimants are not entitled to employment and support allowance (ESA) because they do not have ‘limited capability for work’ continue to dominate the work of many advisers and the First-tier Tribunal’s Social Entitlement Chamber.
Until recently, the effect on claimants of delays in the determination of appeals was mitigated by the provision for payment of ESA (albeit at the ‘assessment phase’ rate) while an appeal is pending against most limited capability for work decisions. The introduction of the requirement for ‘mandatory reconsideration’ (MR) prior to the acquisition of the right of appeal from 28 October 2013 means that claimants face the prospect of being paid no benefit until the MR has been completed, as there appears to be no provision for payment of ESA until an actual appeal has been submitted. Significantly, there is no statutory time limit within which the DWP must complete an MR, so claimants disputing a limited capability for work decision could face lengthy periods of non-entitlement to ESA during a MR.
ESA during a dispute
The law only appears to provide for the payment of ESA pending an appeal (but not pending a MR) of a decision that a claimant does not have limited capability for work.1 The government has recently confirmed, however, that once a claimant has appealed, ESA can be backdated to cover the full period of the MR.2 It is, therefore, in a claimant’s interest that the MR is carried out as quickly as possible to enable ESA to be reinstated and any arrears paid, either as a result of a favourable MR, or the lodging of an appeal following an unfavourable MR.
The government has indicated that in straightforward cases, where no further information is needed, the MR of an ESA disallowance could be completed in about 14 days.3 In such a scenario, claimants could potentially have their ESA restored with little or no gap in payment (precluding the need to claim jobseeker’s allowance (JSA) – see below). It may, however, be in a claimant’s interest to obtain and submit further evidence to increase the prospect of a favourable MR and avoid the need to pursue an appeal. This is likely to delay the MR process, however, creating a tension between minimising delay and maximising the prospect of a successful revision.
The length of time it takes to complete a MR dependents on DWP efficiency and staffing levels, but there is potential for claimants to minimise delay in getting ESA restored by taking account of the following factors.
Timely requests for reconsideration
It is clearly vital to submit the MR request as soon as possible. Although the one-month statutory time limit can be extended by up to 12 months in special circumstances, it is for the DWP to decide whether it is reasonable to accept a late application (although ignorance of the time limits must no longer be disregarded, nor the merits of the application taken into account, when the DWP is making a decision).4 Also, according to the DWP, there is no right of appeal against a refusal to accept a late application for MR.5
Ensuring a request has been lodged
There is no requirement to request a MR in writing, but it is always wise to do so, as there is a risk that a request made in person or by telephone will not be lodged as an application for MR (it could, for example, be treated as a benefit enquiry). Written requests should clearly state that an application for MR of a particular decision is being made.
Further evidence and information
One of the government’s justifications for introducing MR was that it would enable decisions to be reconsidered in the light of further evidence, avoiding the need for so many appeals. To this end, claimants are encouraged to provide further information or evidence when applying for a MR, including when they are contacted by telephone. Although the provision of further information or evidence could increase the chances of a successful MR, it may
also delay the process. It appears, for example, that where a claimant indicates that s/he can submit further written evidence, the decision maker will postpone the MR for a month. Unless, therefore, the claimant can submit compelling evidence within a month which is likely to result in a successful MR, it may be better to wait until the appeal stage to provide further evidence. Perversely, therefore, MR may mean that it is in the claimant’s best interests to provide as little additional information and evidence as possible during the process (including in the telephone call from the DWP), to minimise the time it takes to issue a MR decision.
Reclaiming ESA during a MR
If a claimant reclaims ESA pending a MR, it can only be paid pending reassessment under the work capability assessment if six months have passed since it was determined that s/he did not have limited capability for work, unless s/he is suffering from a new or significantly worsened condition.6
Restoration of ESA pending appeal
Where an ESA disallowance is confirmed following an MR, ESA is payable pending an appeal against a decision that a claimant does not have limited capability for work, unless this was due to the claimant's failing to return the ESA50 questionnaire or attend a medical assessment.7
It is important to submit an appeal following an unsuccessful MR as soon as possible. The appeal should be submitted directly to HM Courts and Tribunals Service (HMCTS) on form SSCS1 accompanied by the MR notice (although an appeal can be accepted without a notice, this will delay matters). There is no requirement to reclaim ESA pending an appeal, as there is automatic entitlement8 (but see below if JSA has been claimed), but the DWP is unlikely to restore ESA until it is notified by HMCTS that an appeal has been lodged. It may be worth claimants sending a copy of their appeal to the DWP, requesting restoration of ESA including arrears.
It is also important to ensure that the DWP has medical certificates (‘fit notes’) which are current and cover the period of the MR, as this is a condition of entitlement for payment of ESA during a dispute. If there are delays in getting ESA restored and the claimant is in financial hardship, s/he could request a short-term benefit advance.
Chasing up and complaining
As with all aspects of DWP decision making, it may be necessary to make ‘chase-up’ enquiries where there are delays in the MR process, or in the restoration of ESA pending an appeal.
If necessary, a formal complaint can be submitted to the DWP and, if necessary, pursued to the Independent Case Examiner. Help could also be sought from a local MP, who may be able to intervene and can also refer maladministration to the Ombudsman.
Claiming JSA pending an ESA dispute
Claimants have the option of claiming JSA during a dispute about whether they have limited capability of work, without it prejudicing their case.9 Until recently, the provision for payment of ESA pending an appeal made this unnecessary in most cases, but the introduction of MR means that claiming JSA is the only means of support for many claimants during a MR of an ESA disallowance.
The major difficulty such claimants are likely to face when claiming JSA is satisfying the labour market conditions in a political and social climate where conditionality and sanctions are being ratcheted up. It is important that claimants are made aware of the conditions, and their rights and responsibilities, before making a claim. In particular, they need to know that they cannot claim JSA solely on the basis that they are disputing an ESA decision and consider that they are incapable of any work. If they indicate that they are too sick to work, they will likely be told that they cannot claim or are not entitled to JSA. This can result in a revolving-door scenario of claimants being told to claim JSA because they are fit for work, and then being told by the jobcentre to claim ESA because they are too sick to work.
Claimants should be aware of the following difficulties which can arise when claiming JSA pending an ESA dispute.
Ensuring a JSA claim is made
Claims should be made by telephone, but claimants must then attend an interview at the jobcentre to complete their claim and a job-seeker’s agreement or claimant commitment (see below). Claimants need to insist on their right to make claim, despite the fact that they are disputing an ESA decision on the basis that they have limited capability for work. It is important, however, that they do not indicate they are too sick to work, which could result in their being told they cannot claim JSA.
It should be possible for the DWP to activate a JSA claim from the day after an ESA award has been terminated – and if a claim for income-based JSA is made within a month of an award of income-related ESA ending, there will usually be no need to provide further information or evidence, if there have been no further changes in circumstances.
Satisfying the labour market conditions
Claimants must be available for work, actively seeking work and have a current jobseeker’s agreement or claimant commitment. This is determined at the initial and subsequent jobseeker’s interviews they are required to attend, and it is important they are aware of the requirements and the questions they are likely to be asked.
- Being available for work involves being willing and able to immediately take up any employment of up to at least 40 hours per week, subject to any allowable and agreed restrictions. Any reasonable restrictions in the light of a physical or mental condition are allowable – eg, hours of work, type of work, location and other conditions. If all such restrictions are reasonable, there is no requirement that the claimant has a reasonable prospect of securing employment.10
- Actively seeking work involves taking steps (normally more than two per week) which can reasonably be expected to have the best prospects of securing work, taking into account any physical or mental limitations.11
- Agreeing a jobseeker’s agreement or claimant commitment which sets out the details of the claimant’s availability for work, including any restrictions, and agreed action to seek employment. Note that the claimant commitment is replacing the jobseeker’s agreement prior to the introduction of universal credit (UC), but the rules about the JSA labour market conditions have not been changed – ie, the claimant commitment is merely a new name for the jobseeker’s agreement. Any imposition of the stricter conditionality requirements relating to UC would be unlawful.
It should be possible to process a claim in time to allow payment on the next due payday, but if there are delays and the claimant is in financial hardship, s/he could request a short-term benefit advance.
Restoration of ESA
If a MR results in a reversal of the original ESA disallowance, payments of ESA should automatically be restored, together with any arrears after offsetting the payments of JSA the claimant has received. If the MR upholds the original ESA disallowance, the claimant may be entitled to ESA pending an appeal (see above).
Although there is no requirement to submit a claim to secure entitlement to ESA pending appeal, if a claimant has been receiving JSA, s/he will need to contact the DWP to relinquish the JSA claim and confirm s/he wants to be paid ESA pending appeal. The DWP should restore entitlement to ESA from the day after the JSA award ends.
Claiming IS during an ESA dispute
It is always worth checking to see whether a claimant could be entitled to income support (IS) following a negative ESA decision – eg, on the basis of being a lone parent with a child under five, a carer or pregnant.
Claiming HB and council tax reduction during an ESA dispute
The DWP normally notifies the local authority when an award of income-related ESA or income-based JSA ends. This may result in the suspension or cessation of the claimant’s awards of housing benefit (HB) and council tax reduction (CTR). The claimant should always contact the local authority to ensure continuing entitlement whether or not s/he claims JSA, and if and when s/he is subsequently reawarded ESA following a successful MR or pending an appeal. If there are no breaks between claims for income-related ESA and income-based JSA, there should be no interruption of HB and CTR entitlement. But if there is a break in claim, it may be necessary to reclaim HB and CTR.
Whether it is better to claim JSA during a MR of an ESA decision will depend on the individual circumstances of claimants, and in particular their ability to financially survive for a limited (but indeterminate) period without ESA and JSA. If a claimant opts to claim JSA, s/he needs to be aware of the rules about making a claim and satisfying the labour market conditions. If s/he does not claim JSA, the above points about facilitating a speedy MR should be borne in mind. In either case, it will be important for claimants to proactively ensure that their entitlement to HB and CTR is safeguarded and that ESA is restored (including any arrears) once the MR is completed.
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- 1. Reg 30 ESA Regulations 2008, SI No.794
- 2. See answers given by Employment Minister Esther McVey to Parliamentary Questions, col 121W of Hansard, 25 November 2013 and Col 486W of Hansard, 16 December 2013
- 3. Ibid., col 121W Hansard, 25 November 2013
- 4. Reg 4 Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991
- 5. See, for example, para 5 of Memo DMG 20/13. It is arguable that there is a right of appeal, taking into account the wording of the regulations and Article 6 of the European Convention on Human Rights.
- 6. Reg 30 ESA Regualtions 2008, SI No.794
- 7. Reg 30 ESA Regualtions 2008, SI No.794
- 8. Reg 3(j) Social Security (Claims and Payments) Regulations 1987, SI No.1968
- 9. Recently confirmed by Minister – see note 2
- 10. Reg 13(3) JSA Regs, SI No.207
- 11. Reg 18(3)(b) JSA Regs 1996, SI No.207