ESA and abolition of the ‘six month rule’
Simon Osborne describes important new rules which affect repeat claims for employment and support allowance (ESA) following failure of the work capability assessment, and entitlement to ESA pending appeal.
For ESA claims made on or after 30 March 2015, new regulations1 effectively abolish the so-called ‘six-month rule’. Under that rule, a claimant who failed the work capability assessment (WCA) and who reclaimed ESA could be entitled to ESA immediately (ie, pending a new WCA assessment) if the new claim was more than six months after the first WCA failure, even though her/his condition had not changed. The new regulations prevent that.
The new regulations also amend the rules about entitlement to ESA pending an appeal against failure of the WCA. Where a claim for ESA is made on or after 30 March 2015, and that leads to a finding that the WCA is failed and the claimant appeals, the new rule is that the claimant is entitled to ESA pending appeal only if the WCA failure being appealed against is the first such failure (or the first since a previous decision that s/he passed the WCA), unless her/his condition has got significantly worse or s/he has a new health condition. Official guidance has now been issued.2
The amendments were introduced following a consultation period notable for its brevity (8–19 December 2014). The Social Security Advisory Committee (SSAC) held workshops in London and Glasgow in December, at which further views were sought. In its report issued on 2 February, the SSAC registered various concerns and, in particular, submitted that implementation of the new rules should be delayed. That was not adopted by the government, although in response to the concerns expressed it did alter the rules so as to preserve the six-month rule in cases where the claimant had failed to return the ESA50 questionnaire or failed to attend a WCA medical – ie, s/he had not actually failed the WCA itself.3
Repeat claims and abolition of the six-month rule
The mechanism of the six-month rule was that a claimant who had failed the WCA and who then reclaimed ESA could be treated as having limited capability for work (and so entitled to ESA) while waiting for a new WCA, if it was more than six months since the previous WCA failure, even though her/his health was unchanged. The government regarded this as an ‘unintended consequence’ of the rules. The new rules prevent it.
From 30 March 2015, the rules for a reclaim of ESA following a failure of the WCA provide that:4
- making a new (ie, a repeat) claim is, as before, entirely possible, and on receipt of the reclaim the DWP should, as before, arrange for a new WCA to be carried out (but see also the Note below);
- there is no entitlement actually to be paid ESA pending the new WCA, even if the reclaim is made six months or more after the previous failure, unless, since that failure, the claimant’s condition has got significantly worse or s/he has a new health condition (but see also the Note below);
- when the new WCA is carried out, the claimant is, as usual, entitled to ESA if s/he passes the assessment, and not if s/he fails it. In that case, s/he can request a ‘mandatory reconsideration’ and, if necessary, appeal in the normal way.
The six-month rule continues to apply where the claimant did not actually fail to satisfy the WCA, but was refused ESA because s/he failed to return the ESA50 questionnaire or attend the WCA medical. In such cases, if s/he reclaims ESA, s/he can be entitled to ESA pending a new WCA if s/he has had a significant worsening in her/his condition or has a new health condition, or in any case if it is made more than six months after being refused ESA.
Note: official guidance tells decision makers that on a reclaim they should consider if they already have sufficient evidence to make a new decision immediately. Also, the decision maker should approach whether there is a ‘significant worsening’ by considering whether the claimant would now pass the WCA. If s/he would not, there is no ‘significant worsening’ and so no ESA pending the new WCA.5 Claimants are likely (as before) to be told whether or not they are entitled to ESA pending appeal. But guidance also points out that, if it is determined that there is no new or significantly worse health condition, ‘the ESA claim cannot be decided until a further [limited capability for work] determination is made’. So claimants denied ESA pending assessment are unlikely to get a formal decision on ESA entitlement until the new WCA is completed. The DWP is therefore likely to say that it is not possible to have a formal revision/appeal of that denial before the new WCA is completed and a formal decision on ESA entitlement issued.
ESA pending appeal
The mechanism for entitlement to ESA pending appeal is that the claimant is treated as having limited capability for work if s/he has made and is pursuing an appeal against a failure of the WCA, and has submitted a medical certificate. It has only ever been possible to get ESA pending appeal following an actual failure of the WCA – ie, not following failure to return the ESA50 or attend the WCA medical. Those rules have not been changed.
The amended rules do not completely abolish ESA pending appeal. Rather, they restrict entitlement so that, unless her/his condition has changed, a claimant who has failed the WCA more than once may not be able to get ESA pending appeal, depending on the facts of her/his case.
Following the amendments, the regulations for ESA pending appeal provide that:6
- where a claim for ESA is made on or after 30 March 2015, and that results in a WCA failure which is appealed, if that is the claimant’s first failure of the WCA, or the first since a previous decision (including by a tribunal or court) that the WCA is satisfied, s/he can in all cases get ESA pending the appeal;
- where on a claim made on or after 30 March the WCA failure is otherwise the second or subsequent WCA failure the claimant has had, s/he can only get ESA pending appeal if her/his condition has got significantly worse or s/he has a new health condition. However, the DWP do not accept that this applies to ESA pending appeal.
Where a WCA failure is subsequently over-turned by a tribunal (or court), it results in a decision that the WCA is satisfied – ie, that the claimant does have limited capability for work. So, where a claimant has successfully appealed against a WCA failure, it may well mean that the previous decision is now that the WCA is satisfied. In that case, the claimant can be entitled to ESA pending appeal for a subsequent WCA failure, even if her/his condition has not changed.7
Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure.
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- 1. 1 Introduced by The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards)(Amendment) Regulations 2015 No.437
- 2. Memo DMG 10/15; ADM 11/15
- 3. The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015; reported by the Social Security Advisory Committee and statement by the Secretary of State for Work and Pensions, March 2015
- 4. The main rule is at reg 30(2)(b) Employment and Support Allowance 2008 No.794 ('ESA Regs'), as amended.
- 5. For example, Memo DMG 10/15 paras 24 and 28, and examples 1-6
- 6. The main rule is at reg 30(3) and (5) ESA Regs, as amended
- 7. This is because the previous determination (ie, that of the successful tribunal) is now that the claimant does have limited capability for work, in which case the subsequent appeal would be against the first failure of the WCA since that determination.