can anyone explain this ESA change?

ESA awarded pending LCW appeal
33 Memo DMG 7/10 gives guidance on the action to take where a claimant is awarded
ESA where they make an appeal against a decision which embodies a determination
that they do not have LCW. The guidance is cancelled from 28.6.10. DMs should
follow the guidance at paragraphs 34 - 60 of this memo instead.
Claimant treated as having LCW
34 Where
1. entitlement to ESA is terminated on supersession following a determination that
the claimant does not have LCW after application of the WCA and
2. the claimant makes an appeal against the disallowance and
3. the claimant submits medical evidence and
4. no claim for IS or JSA is made
the claimant can be treated as having LCW until a determination of LCW is made (see
DMG 42201) while making and pursuing the appeal1, and can be entitled to ESA
without making a claim2. The claimant must also satisfy the other conditions of
entitlement as in DMG 41012, 41021 and 41091.
1 ESA Regs, reg 30(1), (2)(a) & (3); 2 SS (C&P) Regs, reg 3(j)
35 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
paragraph 39 where a claim is made at the same time as the appeal.
36 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, LCW1. 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 in DMG 42203, which would otherwise mean that they could not be
treated as having LCW2.
1 WR Act 07, s 1(3)(a); 2 ESA Regs, reg 30(2)(b) & (3


I'm not sure I completely understand this. At present, I am getting ESA at assessment rate pending my appeal. I have to continue sending sick notes. Does this change which took place on 28/6/10 mean that IN FUTURE, if anyone gets their ESA stopped and they put an appeal in, then they WONT get basic ESA unless they have a new medical condition? As usual, its cloaked in jargon so its difficult to understand. If its correct, it means the end to the loophole of being able to get ESA without ever passing a medical.

No it doesn't mean that they won't get ESA pending an appeal. What it means is that when they claim ESA pending an appeal, it is treated as a new claim not as an extension of the existing claim. That means that the time when your latest claim started is when the decision to refuse you ESA went against you and you appealed, not from when you originally applied. As you point out, this can make it more difficult to keep reclaiming ESA without passing a medical, but with current waiting times for appeals, which can easily exceed six months, this should not be an issue at present.

does this mean if you fail, and appeal you have to 'reapply' ie send in new application forms, or is it just done behind the scenes when you tell them you want to appeal?

You don't need to submit fresh application forms when you appeal, you just tell them that you want to continue to receive ESA pending the appeal.