I've been looking at this too recently and it's all a little unclear.
My view is that the claimant should ask for a new determination on LCW. There is no mechanism for this that I can see in the ESA regs (although there is for those who already have LCW - reg 19(7)-(8)) and this seems to be an unfortunate side-effect of treating claimants as having LCW until an appeal is determined.
The problem, as already identified, is that there can't be a new claim. Alternatives could be to seek an ordinary supersession of the decision under appeal on the grounds of a change in circs or to withdraw the current claim and then to make a new one. I would hope that the DWP will simply allow reassessments.
This also has implications for tribunals who are limited in that they cannot consider changes of circs. Therefore, if reassessments do not happen, clients who did not have LCW but would now have LCW stand to lose a lot and the only way of getting a new determination would be to withdraw the current claim (continuing with the appeal) and claim again. The downside to this is that if there is not a new condition or a significant worsening of the existing one, then ESA will not be paid until the LCWA has been carried out (ESA reg 30).
All in all, this is an unsatisfactory problem with no easy resolution. I intend to advise my client to seek a supersession on the grounds of a CoC and see what happens.
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