ESA appeal date in only 7 weeks!! :) what to expect?

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Well I don't know about that, but both sets of regulations 2008 & 2013 say the same thing in respect of this subject, so you cannot make a new claim within 6 months of an LCW disallowance unless you are appealing the LCW decision, and if you lose the appeal, you cannot make a new claim within 6 months unless you have a new conditon or a worsened condition.

Cpt.Scarlet

I would probably agree with you in regard the 2013 Regs, however, they are not the ones currently in operation.

The 2008 Regs do not say the same as the 2013 ones, they are fundamentally different.

You are confusing LCW with the right to claim, LCW only affects the right to payment.

Lastly look at the two links in the RN article. My DRH has the information on page 60.

epitome

I now agree that 2013 regs would only apply to a claim made after ESA IR has been abolished. However.

The 2008 & 2013 regs do say exactly the same thing on this subject, just using slightly different wordings.

2008 wrote:

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a)whether or not the claimant has limited capability for work;

(b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or

(c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).

(2) The conditions are—

(a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and

(b)that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless—

(i)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(ii)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or

(iii)in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998

2013 wrote:

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
26.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a)whether or not the claimant has limited capability for work;

(b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or

(c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 18 (failure to provide information in relation to limited capability for work) or 19 (failure to attend a medical examination to determine limited capability for work).

(2) The conditions are

(a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and

(b)that it has not, within the six months preceding the date of claim for employment and support allowance, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 18 or 19 unless paragraph (4) applies.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by the First-tier Tribunal.

(4) This paragraph applies where—

(a)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(b)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or

(c)in the case of a claimant who was treated as not having limited capability for work under regulation 18 (failure to provide information), the claimant has since provided the information requested under that regulation.

As I said earlier, it is a requirement of the Welfare Reform Act 2007 to claim ESA a claimant must have LCW. I am not confusing LCW with the right to claim. You cannot claim ESA without LCW. A new claim within 6 months of no LCW being found will be closed at the outset, there is no entitlement to ESA under these circumstances.... there will be no "open claim pending a WCA"... there will simply be no claim at all. The person "Tony Bowman" on that thread is wrong.

Welfare_Reform_Act_2007 wrote:

1Employment and support allowanceE+W+S

(1)An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

(2)Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either—

(a)the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

(b)the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

(3)The basic conditions are that the claimant
(a)has limited capability for work

I don't know what you mean by the 2 links in the RN article maybe you mean this
CPAG handbook page 169,
Disability Rights Handbook page 59
I don't know where to find the DRH page 60. But I do know it would be futile to look because I have quoted the regulations in full which show that you cannot have a new claim to ESA under these circumstances. If those books say otherwise they are simply wrong.

A claim can only exist if there is an entitlement for the allowance to be payable or if there is the potential for the allowance to be payable. If neither of these two things apply then the claim does not exist because it is "disallowed from the outset".

Cpt.Scarlet

So you do not know of the Disability Alliance and the Child Poverty Action Group and you have never seen or used the handbooks or websites, I think that answers my question.

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I think a two line cursory reply to my comprehensive post on this subject showing you why you are wrong says more about you than it does about me.

You rely on the postings/opinions of others to back up your points and are unable to argue for yourself. It is a shame that you have nothing left except ineffective ridicule.

Cpt.Scarlet

I am happy to admit that I probably have not explained myself as well as was needed.

The Disability Rights Handbook, now in its 38th edition, and the CPAG guides and website are the standard reference documents for trained advisors across the UK.

The fact that you have not even heard of them and that you have not even bothered to investigate them I think defines your capabilities.

epitome

The legislation, is all that is needed. I am not going to buy a £30 book just to please you.

I have explained why you are wrong, I have referenced the legislation.
You said "I would probably agree with you in regard the 2013 Regs,"
"The 2008 Regs do not say the same as the 2013 ones, they are fundamentally different."
I have shown you that they are exactly the same on this issue, so if you could see it on the 2013 regs you should see it in the 2008 regs.

You show no ability to explain your position with reference to the legislation, so one has to assume you base your belief soley on what is written in a book written by a third party. No doubt a very respected third party, but to believe that there can be no errors in such a book is very foolish of you. You should always go to the source when trying to solve a problem, the legislation is the source, not a third party book.

Plus there is the elephant in the room of what happens in practice, the DWP refuses to accept these kinds of claim, which backs up what I am saying.

Cpt.Scarlet

R(IB) 8/04

and I was referring to 26.2(b) in the 2013 Regs.

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Cpt.Scarlet wrote: »

R(IB) 8/04

I'll read it when I have time

and I was referring to 26.2(b) in the 2013 Regs.

What do you mean? 2013 26(2)(b) has the same meaning as 2008 30(2)(b)

What difference do you see between them?

epitome

Ok,

I can see from the Upper Tribunal Decision that you have provided -very interesting reading- that there is a correct way of looking at the legislation which only becomes apparant after having ones eyes opened by the Social Security Commisioner.

Rather than insulting me, you could have provided the document earlier or if you didn't have it to hand .... let me know that you would try to dig it out to show me later. Presumably it was referenced in the DPH pg60 which as I said earlier, I do not have. Or you could have just explained it yourself.

The 2013 regs being exactly the same as the 2008 regs in this respect would not change this from still being the case after ESA IR is abolished.