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New-Style ESA: Repeat Claims



Repeat Claims - the rules
If the claimant was found fit for work on their previous ESA claim (ie. they were assessed under the Work Capability Assessment and scored insufficient points (no exceptional circumstances applied so they were deemed fit for work) then when they make a new claim of ESA they will not be able to receive any ESA payments pending a medical assessment unless they can demonstrate that they have a new medical condition or their health condition has significantly worsened.
 
What if the previous decision finding the claimant for for work was over 6 months ago?
 
It does not matter how long ago the decision was. 
For example, it could be someone who was found fit for work 2 years ago, claimed Jobseeker's Allowance in the meantime, but is now claiming ESA again.
The rules relate to the last 'fit for work' decision, no matter how long ago it was.
 
But note: where, on the previous claim, the claimant was treated as not having limited capability for work (ie treated as being fit for work) because of their failure to complete their questionnaire or attend a medical examination – they can be paid from the start of their new claim if more than 6 months have passed since that decision was made.

And claimants who were not entitled to ESA on their previous claim for any other reason than not having limited capability for work (eg other income or savings precluded them from income-related ESA but they now satisfy the rules) can be paid pending a medical assessment on their new claim.
 
 
 
What does 'significantly worsened' mean?
 
DWP guidance indicates a significant worsening in the claimant's condition will be determined in terms of whether they are now likely to satisfy the Work Capability Assessment. So if they are assessed now, are they likely to score enough points or satisfy the exceptional circumstances?  
 
 
What happens if someone makes a repeat claim?
 

The DWP will issue a form (ESA83) to people who make a ‘repeat’ claim which will ask for information about whether they have a new or significantly worse medical condition.

If the claimant has any further supporting medical evidence (eg letter from GP, consultant, support worker) which can demonstrate things have got worse since the previous decision was made they should provide this.

They should ideally explain why they would now score sufficient points or should be automatically treated as having limited capability for work. 

It appears that there are 3 possible outcomes, depending on whether the decision maker accepts there is sufficient medical evidence and, if so, whether this demonstrates there is a new condition or a deterioration. 

1. Sufficient medical evidence and evidence supports a new or deterioration of health condition
If the decision maker accepts that there is sufficient evidence to indicate that the claimant has a new medical condition or significant deterioration and they are now likely to satisfy the Limited Capability for Work Assessment, the claimant will be referred for a WCA medical assessment. In these circumstances the claimant is entitled to receive ESA payments while they are waiting for the medical examination to be carried out.

2. Sufficient medical evidence and that evidence indicates no new condition or deterioration
If the decision maker decides there is sufficient evidence to indicate that there is no new condition or significant worsening, they can make a decision that the claimant does not have a limited capability for work. The decision maker has the power to decide this without referring the claimant for a medical assessment. The decision maker can decide that the previous LCW assessment decision still applies and issue a decision that there is no entitlement to ESA because the claimant is still fit for work. The claimant can request a mandatory reconsideration of (and then appeal) this decision. Click here for more information about challenging decisions and here for information about alternative sources of income. Click here for standard letter ESA4 to challenge a fit for work decision.

3. Insufficient medical evidence
The decision maker may decide that there is not sufficient evidence available to enable a decision to be made on whether the claimant has a limited capability for work. If this is the case they should refer the claim for a Work Capability Assessment. Click here for reconsideration request letter ESA6. During this period the claimant is not eligible to be paid any ESA and may need to seek other sources of income. 

 

What can those claimants who cannot be paid ESA until the outcome of their Work Capability Assessment do for money?

Where the claimant is making a 'repeat' claim for ESA they may not be able to receive any ESA until the outcome of their claim is known. Whilst they are waiting for this - and it could take several months - what they are able to claim will depend on their circumstances.

Can they manage on their other income?
If the claimant receives Personal Independence Payment/Adult Disability Payment and Housing Benefit they may choose to manage on this rather than claim New-Style JSA/Universal Credit; if so, they should notify the Housing Benefit Office of their ‘nil income’.

They may need to claim Universal Credit
They might need to make a claim for Universal Credit if they do not have enough to live on (and pay the rent).

Unless they are likely to satisfy the NI contribution conditions for New-Style ESA, they might as well at this point try to get their Work Capability Assessment processed via their UC claim instead.

However, if they are likely to satisfy the NI conditions, they could request that their WCA is still carried out by the ESA dept, as they might prefer to receive New-Style ESA and UC. See here for more info on why this might be the case.

Any 'Limited Capability for Work' decision which is carried out by the ESA dept should be taken into account in the Universal Credit assessment. And any New Style ESA would be taken into account as income when their UC is assessed.

Similar 'repeat claim' rules exist under Universal Credit. But, unlike with New-Style ESA, the claimant will be able to be paid UC whilst they wait the outcome of their Work Capability Assessment.