A welcome change has occurred for clients who fail their Work Capability Assessment and have no benefit up to the date of the MR. They can now lodge their appeal directly and if they send in ft for work notes, will be able to access ESA pending an appeal immediately without having to go for MR.
The government has issued guidance ( and here)after a High Court decision in July 2020 (Connor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWHC 1999 (Admin)).
'Para10. The effect of the judgment is that the MR process is no longer mandatory where an ESA claimant would be eligible for payment pending appeal. '
'Para9. Where the conditions are potentially met for an award of ESA pending a LCW appeal, MR is not required.'
Para8. 8. An ESA claimant
1. who lodges an appeal against a decision which includes a determination that they do not have LCW following application of the WCA and
2. for claims made on or after 30.3.15, for whom it is the first determination 2.1 that they do not have LCW or
2.2 since the previous determination that they did have LCW and 3. who provides medical evidence
can be treated as having LCW and paid ESA pending the outcome of the appeal1. subject to the 365 day time limit2.
Note 1: This does not apply where an ESA claimant is treated as not having LCW for failure to return the questionnaire or failure to attend or submit to a medical examination.'
Confusingly it would also not apply where there is no potential entitlement to payment of ESA pending appeal; or the claimant has a dual claim for ESA and Universal Credit- the UC decision would still need an MR.
Book now for our updated Benefits and Mental Health 2020 online course and our An Overview of Universal Credit 2020 course.