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New rules for repeat claims to ESA

Before 30 March 2015, a person who made a repeat claim to Employment and Support Allowance (ESA) would automatically be treated as having limited capability for work provided s/he could provide certificate from her/his GP, even if the most recent decision after a Work Capability Assessment was that s/he did not have limited capability for work. This would apply until the next Work Capability Assessment.

This is no longer the case. From 30 March 2015, if a person makes a repeat claim to Employment and Support Allowance (ESA), where the most recent decision after a Work Capability Assessment was that s/he does not have limited capability for work, s/he will not automatically be treated as having limited capability for work.

Instead the person will have to demonstrate her/his health condition has significantly worsened or s/he has a new health condition. This applies even if the repeat claim is made after a period of six months.

The previous six months rule continues to apply to those who are treated as not having limited capability for work because they failed to return the ESA50 or attend a medical examination.

In addition, a person will no longer be entitled to payment of ESA pending appeal where the appeal is against a decision on a repeat claim. Instead, a person in these circumstances will be expected to claim Jobseeker’s Allowance (JSA). The period for which a person can have a period of sickness but remain entitled to JSA has been increased to 13 weeks.

Example

Joe had claimed ESA on 14 June 2014 for the first time due to mobility difficulties. He initially received ESA payments at the assessment phase rate. He was subject to a Work Capability Assessment medical examination and it was determined that he did not have limited capability for work. He appealed this decision and continued to supply medical certificates from his GP. As a result, he continued to receive ESA at the assessment phase rate while waiting for his appeal to be heard. His appeal was heard on 28 March 2015 and the tribunal dismissed his appeal and found that he did not have limited capability for work.

Joe makes a new claim to ESA on 31 March 2015. He supplies a medical certificate from his GP which states that he remains unable to work due to his problems with mobility. However, as this is a repeat claim made after 30 March 2015, he cannot be treated as having limited capability for work unless he can show a new condition or that his condition has significantly worsened to the extent that he would be likely to score 15 points on the WCA.

In addition, the decision maker will consider the evidence from his previous claim in determining if Joe has limited capability for work. Joe may not be asked to attend a medical examination for this claim if that previous evidence can still be relied on.

If his claim to ESA is refused on the basis that he does not have limited capability for work and he appeals this decision, he will not be paid ESA while waiting for his appeal to be decided.

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