The rules about how DWP treat repeat claims for ESA changed on 30th March 2015.
The new rules state that if you have had a previous claim or appeal refused since 30th March 2015 and you then later make a new claim for ESA, even many years later, ESA will only be paid if it is accepted that your health condition has got much worse or that you have developed a new health condition. This rule will apply whether the decision was after a failed medical or a failed appeal. The important point is the date of the previous decision.
If you make a repeat claim in these circumstances after a previous failed claim or appeal and DWP do not accept that you have got much worse then they will decide that you are fit for work. You will need to ask for a mandatory reconsideration and an appeal against this decision. You will not be paid ESA until and unless the DWP change their decision and accept that you are unfit for work. You will need to claim Job Seeker’s Allowance (JSA) during this period. If you have a child under 5 or are a carer you may be able to claim Income Support as an alternative.
Similar rules apply for Universal Credit (UC). If you have previously failed to be accepted as being too ill to work (whether for ESA or UC) and you then submit a new fit note you will only be referred to a second medical assessment if the DWP accept that there has been a deterioration in your condition or you have developed a new condition.
Tips for how to deal with this situation
- If you are refused a claim for ESA at a medical or at mandatory reconsideration or appeal you should always consider carefully whether you are in fact fit for work or whether you should be continuing with the dispute or appeal as abandoning the claim without having exhausted all of your options makes it much more likely that you will get caught by this rule if you later start a new claim. It is particularly important that you thoroughly discuss your options with an experienced advisor in this situation.
- If you are going to make the repeated claim you need to consider at the outset how you can argue that your condition has significantly worsened or that you have developed a new condition. You could consider what medical diagnosis is given on your fit note and whether this in fact covers all of your conditions. Your GP may be agreeable, if you have other conditions, to changing the wording. Ideally you need to have developed a new condition and in this situation you should ask your GP to specifically mention the new condition on your fit note.
- If you have not developed a new condition but your existing condition has significantly worsened then you will need to explain this right from the start. You could send in a letter with your fit note or write on your claim form explaining why you feel there has been a significant deterioration. For example you could refer to the fact that your GP or consultant has advised you that your condition has deteriorated and give details of what you have been told and the contact details for your GP or consultant as proof. You may have a copy of a medical report or letter which indicates this which you could attach. You may have significantly increased doses or stronger medication prescribed. If you have a mental health condition you may have had to be admitted to hospital because of this or referred to a new specialist. If you have arthritis for example you might argue that new joints are affected and as a result you can no longer do certain activities and then list the things you could do before but can no longer do.
- If the claim is rejected you should continue. You should seek advice and ask your advisor to help you to challenge the decision. You will need help to ensure that all possible steps are taken at each stage of your dispute to try to get the decision changed. It would be best not to try doing a mandatory reconsideration without help in these circumstances.
- If you are not already in receipt of Disability Living Allowance or Personal Independence Payment (PIP) you could consider making a claim for PIP as the medical assessment for this and a positive outcome could help in persuading DWP that your condition has got much worse.
- Meanwhile, if you are not claiming UC and as long as you are not in a full service area , you will need to claim JSA and put restrictions on your availability and ensure you explain your problems to your job coach and any other staff you see at the Job Centre including staff working for any schemes they refer you to or a Disability Employment Advisor (these are specialist job centre workers who work with people with disabilities). As you will be meeting them face to face sometimes they may be able to see for themselves what your difficulties are and this can assist in getting the decision changed.