Failed WCA on new ESA claim made pending outcome of appeal to Upper Tribunal

Hi folks I have what feels like a never ending case. The claimant initially appealed a failed WCA. (He failed to attend his very first tribunal in December 2010 and we had to get the resulting refusal decision set aside but that’s not the issue!). He then lost the appeal at a tribunal held in March 2011 but we went on to appeal to the upper tribunal. The upper tribunal made a decision in November 2011 to set aside the first tribunal’s decision. A new tribunal then re heard his appeal in December 2011, and this time allowed it.

The problem is that during the period between him losing his first ESA tribunal in March 2011 and getting this tribunal decision set aside by the upper tribunal in Nov 2011 he had to make a new ESA claim in June 2011. He failed the WCA on this new claim in September 2011 and (unknown to me - I’ve just found out this morning) made a further appeal. This appeal is now listed to be heard in Feb 2012.

DWP have now paid up (at work related activity rate) on his previous successful appeal but only up to the date of the failed WCA on the new claim that he was forced to make pending the outcome of his appeal to the upper tribunal. From then on he’s been kept on assessment phase rate pending the next appeal.

Claimant not happy as he thought he would remain in the work related activity group following his succesful appeal, but is now back to square one in the assessment phase with another appeal next month. Is there any way round this? could reg 147A(2) apply to the new claim to prevent a deteremination of LCW on that claim pending the outcome of the original appeal? I’m not at all sure of this so any help very welcome.

Very pleased to report that although this claimant did have to attend yet another tribunal his appeal was allowed.