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Chapter U7: ESA award made pending appeal

Contents
U7001:Introduction
U7005:Claimant treated as having LCW
U7008:Claimant awarded component during appeal
U7015:Payment of component
U7016:Date award begins
U7030:Late appeals
U7035:Prisoners
U7040:Further ESA claims
U7045:JSA awarded before appeal made
U7050:Referral for WCA
U7051:Change of circumstances
U7060:Change in claimant's health condition
U7061:Appeal dismissed
U7062:Appeal allowed
U7064:Appeal withdrawn, struck out or dismissed
U7075:Appeal allowed
U7080:Appeal reinstated
U7081:Appeal remitted
U7085:Appeal to UT by the claimant or the Secretary of State

Chapter U7: ESA award made pending appeal

U7001 Introduction

This Chapter gives guidance on :
1.
when a claimant can be awarded ESA pending an appeal against a decision
which includes a determination that the claimant does not have LCW :
2.
how to deal with changes of circumstances before the appeal is heard :
3.
what action to take when the appeal has been determined.

U7002

In this Chapter references to ESA mean new style ESA which is being gradually
phased in from 29.4.13. See ADM Chapter M1 (Pathfinder Group - claims for UC)
for guidance on the meaning of new style ESA.

[U7003-U7004]

U7005 Claimant treated as having LCW U7009 U7016 U7018 U7030 U7040 U7045 U7053 U7054 U7067 U7086

Where
1. entitlement to ESA is disallowed or terminated following a determination that
the claimant does not have LCW after application of the WCA and
2. the claimant makes an appeal to a FtT against the disallowance and
3. the claimant provides or continues to provide medical evidence and
4. no claim for JSA is made
the claimant can be treated as having LCW until a determination of LCW is made
(see ADM Chapter U2) while making and pursuing the appeal (1), and can be entitled
to ESA without making a claim (2). The claimant must also satisfy the other conditions
of entitlement as in ADM Chapter U1.
Note: This does not apply where the claimant makes an appeal to a UT.

1 ESA Regs 13, reg 26(1), (2)(a) & (3); 2 UC, PIP, JSA & ESA (C&P) Regs, reg 7

U7006

DMs should note that the award made pending determination of the appeal is a new
award, and not a reinstatement of the previous award which is the subject of the
appeal. Nor is there any provision enabling the appeal to be treated as a claim. See U7040 where a claim is made at the same time as the appeal.

U7007

DMs should also note that the condition of entitlement which must be satisfied in
order to make the award is that the claimant has, or is treated as having, LCW (1).
Making an appeal is not a condition of entitlement, nor does it enable the claimant to
be treated as having LCW in its own right. Instead, it allows the claimant to be
exempted from the six months rule, which would otherwise mean that they could not
be treated as having LCW (2).
Note: See ADM Chapter U2 (LCW & LCWRA) for detailed guidance on the six
months rule.
1 WR Act 07, s 1(3)(a); 2 ESA Regs 13, reg 26(2)(b) & (3)

U7008 Claimant awarded component during appeal U7009 U7011 U7015

The guidance on treating a claimant as having LCW also applies where a claimant is
entitled to ESA pending an appeal. Examples of when that guidance applies are that
a claimant is
1. a hospital patient or
2. receiving other treatment (1).
Therefore a component can be awarded in the normal way where a claimant is
entitled to ESA pending an appeal.
Note: See ADM Chapter U2 (LCW & LCWRA) for guidance on treating a claimant
as having LCW

1 ESA Regs 13, reg 16, 21, 22 & 25

U7009 U7010 U7011 U7015

Where
1. the DM determines that
1.1
the claimant
1.1.a
can no longer be treated as having LCW as in U7008 and
1.1.b. does not have LCW following application of the WCA and
2. the appeal has not been heard
the claimant can still be treated as having LCW pending the appeal (1) (see U7005).
The decision awarding the component should be superseded to remove it (2).
1 ESA Regs 13, reg 26(3) & 87(4); 2 SS Act 98, s 10(5); UC, PIP, JSA & ESA (D&A) Regs, reg 26(1)

Example

Dave is entitled to ESA pending an appeal against a decision terminating his award
of ESA following application of the WCA. He notifies that he was admitted to hospital
for 2 days for minor surgery. Dave is referred for a further WCA, and the HCP
advises that Dave should have recovered from the surgery within 3 weeks. The DM
treats Dave as having LCW, and determines that he does not have LCWRA. The
pending appeal award is superseded to include the WRAC.
Dave is referred for a further WCA, and the HCP advises that he is fully recovered
from his operation. In the HCP's opinion, Dave does not satisfy any of the LCW
descriptors. The DM supersedes the award to remove the component from the date
of the decision. Any further action depends on the outcome of the appeal.

U7010

The guidance at U7009 also applies where the claimant was awarded a component
following a change in their health condition as in U7051 et seq.

U7011

Where U7008 or U7009 applies, U7064 et seq should be followed once the outcome
of the appeal is known.

[U7012-U7014]

U7015 Payment of component

Where a claimant is
1. entitled to an ESA award pending an appeal and
2. becomes entitled to a component as in U7008 or U7009
the guidance on when the component is payable applies, regardless of when the
change in the claimant's health condition occurred (1). See ADM Chapter V1 (ESA
amounts) for further guidance.
1 ESA Regs 13, reg 5, 6 & 7(1); UC, PIP, JSA & ESA (D&A) Regs, reg 15(4), 26(1) & 35(7) or (8)

Example 1

Jane has been entitled to ESA since 8.5.14 pending an appeal against a decision
terminating ESA from 8.5.14. Her previous award, which did not include a
component, was for more than 13 weeks. She is admitted to hospital after suffering
a stroke on 17.9.14. Following application of the WCA, the DM determines that Jane
has LCW and LCWRA. The pending appeal award is revised to award the support
component from 8.5.14, the date the pending appeal award began.

Example 2

Jason's award of ESA was terminated from 15.11.13 after he failed to attend a
medical examination. He makes a further ESA claim from 15.11.13, and is referred
for a WCA. On 10.3.14 the DM determines that Jason does not have LCW, and
disallows the claim from 15.11.13. Jason appeals, and is awarded ESA from
10.3.14.
Jason's health deteriorates, and he is referred for a further WCA. The DM
determines that Jason has LCW, but does not have LCWRA. The pending appeal
award is superseded to award the WRAC from 9.6.14.

U7016 Date award begins U7017 U7018 U7030

As there is no requirement to make a claim for the award to be made following an
appeal as in U7005 (1), the claimant does not specify the period for which they wish to
claim ESA. The DM should normally begin the award on the day
1. after the last day of entitlement of the award which is the subject of the appeal
or
2. the medical evidence begins if later.
Note 1: See U7018 if the appeal follows a claim on which no award was made.
Note 2: See U7045 et seq where another benefit is claimed while the appeal is
awaiting hearing.

1 UC, PIP, JSA & ESA (C&P) Regs, reg 7

U7017

The guidance in U7016 also applies where the appeal is admitted outside the one
month time limit for appealing.
Note: See ADM Chapter A6 for guidance on appeal time limits.

U7018 U7016

Where :
1.
a claim is disallowed on which no award has been made after application of
the WCA and :
2.
the claimant makes an appeal and is awarded ESA as in U7005
the guidance in U7016 does not apply. Instead, the award begins on the day
following the last day of the disallowance.

Example

Colin's award of ESA is terminated from 15.8.14 after he fails without good cause to
attend a medical examination. He submits a further claim from 15.8.14, but cannot
be treated as having LCW (see ADM Chapter U2). After application of the WCA, the
DM determines that Colin does not have LCW for the whole period covered by the
claim, and on 9.10.14 disallows the claim from 15.8.14. Colin makes an appeal
against the decision on the claim, and sends in doctor's statements. He can be
treated as having LCW and awarded ESA from 10.10.14.

[U7019-U7029]

U7030 Late appeals

Where
1. a late appeal is admitted, either by the DM or the FtT and
2. the conditions for making an award pending the outcome of the appeal are
satisfied (see U7005)
the DM should award ESA as in U7016. If the claimant had claimed and been
awarded JSA before the late appeal was admitted, the DM should consider the
guidance at U7045 et seq.

Example

Rosie's award of ESA is terminated from 23.6.14 following application of the WCA.
Rosie claims and is awarded JSA from 2.7.14. She then lodges an appeal on 5.8.14
against the decision terminating ESA, which is admitted by the FtT. She also sends
a doctor's statement for three months from 23.6.14. Rosie's JSA award ends on
7.8.14, and the DM awards Rosie ESA for the period 23.6.14 - 1.7.14, and from
8.8.14. If Rosie's appeal is successful, the DM should offset the JSA paid against
any ESA arrears due.

[U7031-U7034]

U7035 Prisoners

Where a claimant is
1. entitled to ESA pending an appeal and
2. imprisoned or detained in legal custody
the normal rules as to how this affects entitlement to and payment of ESA apply (1).
Note: See ADM Chapter U6 (Disqualification) for guidance on prisoners.

1 ESA Regs 13, reg 95 - 97

U7036

Where
1. ESA entitlement ends as a result of a period of imprisonment and
2. the claimant's appeal is allowed
the DM should follow U7075 but only for the period of entitlement.

Example

Jackie is entitled to ESA pending an appeal against a decision terminating ESA
following application of the WCA. Jackie is sentenced to 18 months in prison, and
after 6 weeks the DM treats her as not having LCW from the first day of
imprisonment, as the period of disqualification exceeded 6 weeks.
Jackie is released after 6 months. Her appeal still hasn't been heard, and therefore
she is not required to make a claim in order to become entitled to ESA. Jackie is
awarded ESA from the date of release from prison after sending in evidence of LCW
from that date.
Jackie's appeal is successful, and the DM awards her arrears of the WRAC, other
than for the period when Jackie was not entitled while she was in prison.

[U7037-U7039]

U7040 Further ESA claims U7006

Where a person
1. makes an appeal against a disallowance and becomes entitled to ESA as in U7005and
2. makes a claim for ESA
the claim cannot be decided. This is because the claim is for a benefit which has
already been awarded. See ADM Chapter A1 (Principles of decision making and
evidence) for further guidance.
Note: Where the claim or accompanying evidence shows a deterioration or new
condition, see U7051.

[U7041-U7044]

U7045 JSA awarded before appeal made U7016 U7030 U7046

Where the claimant
1. is awarded JSA after the ESA award is terminated and
2. makes an appeal against the ESA disallowance
the claimant can only be awarded ESA as in U7005 from the date that JSA ends if
they relinquish the award of JSA, or that award otherwise ends. This is because a
person cannot be entitled to ESA if they are entitled to JSA (1).
Note: See ADM Chapter A4 (Supersession) for guidance on relinquishment, and
Chapter U1 for guidance on ESA conditions of entitlement.

1 WR Act 07, s 1(3)

U7046

Where U7045 applies, the ESA award begins on the day
1. after the award of JSA ends or
2. from which medical evidence is provided where this is later
but excludes any period for which they were entitled to JSA.

Example

David's award of ESA is terminated from 8.5.14 after he fails the WCA. He claims
JSA on 17.5.14 after receiving the ESA decision, and is awarded JSA from 8.5.14.
On 7.7.14, he decides to make an appeal against the ESA disallowance, and
submits medical evidence from the date his entitlement to ESA ended. The FtT
admits the appeal. David's entitlement to JSA ends on 21.7.14. David is treated as
having LCW from 22.7.14 and is awarded ESA from that date.

U7047

DMs are reminded that the prescribed time for claiming JSA can be extended for up
to a month (1) where certain conditions apply (2). See ADM Chapter A2 for further
guidance.
1 UC, PIP, JSA & ESA (C&P) Regs, reg 29(4); 2 reg 29(5)(d)

[U7048-U7049]

U7050 Referral for WCA

The DM should not make a determination about LCW until the appeal is determined
by the FtT (1). This means that the claimant should not be referred for the WCA. But
see U7051 et seq where there is a change of circumstances before the appeal is
heard.
1 ESA Regs 13, reg 87(2)

U7051 Change of circumstances U7010 U7040 U7050 U7054 U7060 U7064 U7076

Where
1. the claimant suffers from some specific disease or bodily or mental
disablement from which they were not suffering when entitlement began or
2. a disease or bodily or mental disablement from which the claimant was
suffering at that date has significantly worsened
they should be referred for the WCA as normal even though the appeal has not been
heard (1).

1 ESA Regs 13, reg 87(3)

U7052 U7064 U7069

Where, following application of the WCA, the DM determines that the claimant has
LCW and awards a component, the guidance about ending the assessment phase in
ADM Chapter V1 applies. See U7064 et seq for the further action to take after the
appeal is heard.

U7053 U7054 U7064 U7069

Where the claimant can be treated as having LCW (1) other than in U7005, for
example where they are admitted to hospital, the DM should make the appropriate
determination. This means that the claimant is no longer required to submit medical
evidence. See ADM Chapter U2 for guidance on treating the claimant as having
LCW.

1 ESA Regs 13, regs 16, 21, 22 or 25

U7054 U7060 U7064

Where the DM makes a determination that the claimant
1. does not have LCW following application of the WCA as in U7051 or
2. is treated as not having LCW because they have failed without good cause to
return the questionnaire or attend for medical examination (1) or
3. is no longer treated as having LCW as in U7053
the determination is treated as not made until the appeal is heard (2). This enables the
claimant to continue to be treated as having LCW as in U7005 (3). The claimant must
continue sending in medical certificates for entitlement to continue (4).
Note: Where the appeal is allowed, the DM takes action as in U7075 et seq. No
further action is taken on the previous WCA referral, subject to the normal WCA
review process (see ADM Chapter U2).

1 ESA Regs 13, reg 18 or 19; 2 reg 87(4); 3 reg 26; 4 reg 26(2)(a)

U7055

Where the claimant starts work which is not exempt work, they should be treated as
not having LCW in the normal way even though the appeal has not been heard. If
the appeal succeeds, see U7075 et seq for guidance on the action to take.
Note: See ADM Chapter V3 for guidance on the effect of work on ESA entitlement.

[U7056-U7059]

U7060 Change in claimant's health condition

Where U7051 - U7054 applies and the WCA is not completed by the time the
appeal is heard, the action to take depends on the outcome of the appeal.

U7061 Appeal dismissed

The guidance at U7064 - U7066 should not be followed. The claimant can continue
to be treated as having LCW pending application of the WCA (1). See ADM Chapter
U2 for further guidance.
1 ESA Regs 13, reg 26(2)

U7062 Appeal allowed

If the appeal is allowed and the FtT determines that the claimant does not have
LCWRA, the guidance at U7075 should be followed as normal, and arrears of the
WRAC awarded as appropriate. However, the WCA should still be carried out to
establish whether the change in the claimant's health condition means that they now
have LCWRA.

U7063

If the appeal is allowed and the FtT determines that the claimant has or should be
treated as having LCWRA, the guidance at U7075 should be followed as normal,
and arrears of the support component awarded as appropriate. The WCA referral
should be cancelled subject to the normal review process.
Note: See ADM Chapter U2 (LCW & LCWRA) for further guidance on the WCA
process.

U7064 Appeal withdrawn, struck out or dismissed U7011 U7052 U7061 U7065 U7067 U7068 U7069 U7069 U7085

Where
1. the claimant is entitled to ESA after making an appeal and
2. they are treated as having LCW while providing medical statements and
3. either
3.1 there is no change of circumstances (see U7051) or
3.2 following a change of circumstances, the claimant is treated as having
LCW where they have been found not to have LCW after application of
the WCA (see U7054) and
4. the appeal is withdrawn, struck out or dismissed
the claimant is treated as not having LCW as in U7065 (1).
Note
1: This does not apply where the claimant is found to have LCW as in U7052
or is treated as having LCW as in U7053 (see U7069).
Note 2: See U7080 for guidance if an appeal is reinstated.
Note 3: See U7081 for guidance if an appeal is remitted.

1 ESA Regs 13, reg 26; reg 87(5)

U7065 U7064

Where U7064 applies, the claimant is treated as not having LCW from the first day
of the benefit week following the date on which the DM receives the FtT notification
that the appeal is withdrawn, struck out or dismissed (1).

1 ESA Regs 13, reg 87(6)

U7066 U7061

The decision awarding ESA is superseded on the grounds of a relevant change of
circumstances (1), and is effective from the date of change (2). The change is that the
claimant is treated as not having LCW.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 23(1); 2 Sch 1, para 1 & 4

Example

Heather's entitlement to ESA ends when she fails the WCA. She appeals, and ESA
is awarded from the date of disallowance. Her appeal is dismissed. The FtT decision
notice is received in the office administering her award of ESA on 9.7.14. Heather's
benefit week ends on Monday. The DM treats her as not having LCW from 15.7.14,
the first day of the next benefit week. The decision awarding ESA is superseded and
terminated from 15.7.14.

U7067

DMs should note that where the claimant makes an appeal against the decision
made as in U7064 et seq, a further claim is required in order to consider entitlement
to ESA. The claimant cannot be treated as having LCW as in U7005 even if they
make an appeal.

U7068

The condition about not being treated as having LCW within six months of a
determination that the claimant does not have LCW only applies to a determination
made :
1.
following application of the WCA or :
2.
where the claimant is treated as not having LCW for a failure to return the
questionnaire or attend for medical examination.
It does not apply to a determination that the claimant is treated as not having LCW
as in U7064 et seq.
Note: See ADM Chapter U2 (LCW and LCWRA) for guidance on the six months
rule.

Example 1

Ewan's entitlement to ESA is terminated on 7.7.14 after application of the WCA. He
makes an appeal, and is awarded ESA from 8.7.14. His appeal is dismissed on
18.11.14, and the DM treats him as not having LCW, terminating his award of ESA
from 15.12.14. Ewan makes a further claim for ESA on 30.12.14. As this is within six
months of the DM's determination of 6.5.14 that he did not have LCW following
application of the WCA, Ewan cannot be treated as having LCW pending application
of the WCA.

Example 2

Amy's award of ESA is disallowed from 7.7.14 after application of the WCA. She
becomes entitled to ESA from 7.7.14 after making an appeal against the
disallowance. Her appeal is dismissed on 15.12.14, and the DM treats her as not
having LCW from 5.1.15. Amy makes a further claim for ESA on 12.1.15. This is
more than six months after the previous determination that she did not have LCW
following application of the WCA. Amy is treated as having LCW pending application
of the WCA.

U7069 U7064

Where :
1.
the claimant is
1.1 found to have LCW following application of the WCA (see U7052) or
1.2. treated as having LCW (see U7053) and :
2.
the appeal is withdrawn, struck out or dismissed (see U7064)
the claimant is not treated as not having LCW as in U7064 et seq. Entitlement to
ESA is not affected by the outcome of the FtT appeal.

[U7070-U7074]

U7075 Appeal allowed U7036 U7054 U7055 U7062 U7063

Where the appeal is successful, the FtT's findings of fact and determination are
conclusive for the purposes of whether the claimant has LCW or LCWRA in their
current entitlement to ESA (1). But see U7076 where there is a change of
circumstances before the appeal is determined.
1 ESA Regs 13, reg 87(7)

Example

Jack was entitled to ESA from 13.5.14 after making an appeal against a decision
which embodied a determination that he did not have LCW. His appeal is allowed,
and the FtT finds that he should be placed in the WRAG. As the previous entitlement
to ESA ended after more than 13 weeks, arrears of the WRAC are paid up to
12.5.14 as appropriate. The DM makes determinations that Jack has LCW but does
not have LCWRA in relation to his current entitlement, and revises the decision
awarding ESA from 13.5.14 to pay the WRAC from that date.

U7076 U7075

The FtT's findings or determinations do not apply where
1. there was a change of circumstances after entitlement to ESA began as in U7051and
2. the DM is satisfied that as a result it is no longer appropriate to rely on the
FtT's findings or determinations (1).
1 ESA Regs 13, reg 87(8)

Example

Pearl's entitlement to ESA is ended after ten weeks following application of the
WCA, and she makes an appeal. She is awarded ESA after submitting medical
certificates. Later she becomes pregnant with complications, and the DM treats her
as having LCW and LCWRA. Pearl is placed in the support group from the 4th week
of her current entitlement. The appeal is allowed, the FtT placing her in the WRAG.
The DM determines that the FtT's findings should not be followed and takes no
further action on the award made pending the appeal.

[U7077-U7079]

U7080 Appeal reinstated U7064

Where an appeal which has been struck out is subsequently reinstated, the DM
should consider whether a further pending appeal award can be made, in the same
way as for a late appeal. See ADM Chapter A6 for guidance on reinstatement of
appeals.

U7081 Appeal remitted U7064

Where an appeal is dismissed but is subsequently remitted by the FtT or the UT for
rehearing, the DM should consider whether a further pending appeal award can be
made, in the same way as for a late appeal (see U7086).
Note: See ADM Chapter A6 (Appeals) for guidance on remitted appeals.

Example 1

Roger's award of ESA is terminated when his appeal against termination of the ESA
following application of the WCA is dismissed by the FtT. Roger is awarded JSA.
The UT Judge sets aside the FtT decision, and remits the appeal for rehearing.
Roger can be awarded ESA if he gives up his JSA award and provides doctor's
statements.

Example 2

Mick's award of ESA is terminated from 1.10.14 following application of the WCA.
He is awarded ESA pending an appeal against the termination. The FtT dismisses
the appeal on 19.5.15, and the ESA award is terminated from 27.515. Mick
immediately makes a further claim for ESA, and is treated as having LCW pending
application of the WCA, as it is more than 6 months since the previous LCW
determination was made.
On 24.7.15 the FtT decision is set aside by the FtT, and the appeal is listed for
rehearing. As Mick is already entitled to ESA, there is no need to make a further
award pending the outcome of the appeal. The DM is not prevented from carrying
out the WCA as normal.

[U7082-U7084]

Appeal to UT by the claimant or the Secretary of State

U7085

If the FtT dismisses the appeal, and the claimant applies for permission to appeal to
the UT, the DM should make a determination about LCW and end the award as in U7064et seq.

U7086 U7081

Where the UT allows the appeal and remits it to a FtT, the DM may need to revise (1)
the decision in order to reinstate the award, as it may be possible to treat the
claimant as having LCW as in U7005. However, this depends on any benefit
awarded or other changes which may have occurred since the appeal to the FtT was
initially heard.
1 UC, PIP, JSA & ESA (D&A) Regs, reg 5(1)(a)

[U7087-U7999]