New ESA claim needed? - with new assessment phase?

I have an ESA (WCA) tribunal this Thursday and I’m as sure as I can be we will win and that client will be placed back in the support group - which is where he was before the no LCFW decision. However, there’s a problem…..

1. Client in receipt of C-ESA with income related top-up (he has a partner) up to 23/9/2016 when he receives no LCFW/ESA disallowance decision.

2. MR requested by telephone 24/9/2016.

3. Client claims JSA and this awarded from 29/9/2016. However, as he’s Slovakian there are right to reside issues/enquiries to be made and this delays the claim actually going into payment for about 4 weeks. Only at this point do I get involved.

4. Client receives highest rate of both components of PIP and wife claims CA. She is advised by Jobcentre to claim IS - though she is of Slovakian origin she has British citizenship (client/husband never bothered) and is told this will avoid all problems whilst waiting on ESA appeal. I advise against this (JSA is by now in payment) and explain why, but she goes ahead - husband closes JSA claim, she claims IS and does not tell me. IS paid from 4/11/2016 up to present.

As I see it (and assuming I’m right and we do win the ESA appeal) whilst the JSA claim could have been revised and ESA reinstated had the husband stayed on JSA, the above facts will mean that wife will need to close her IS claim and husband will need to make a new ESA claim if he wishes to get back onto ESA.

But could that new claim be backdated (via the normal 3 month backdating rule) so as to;

a) make the gap between the end of the last ESA claim/last period of incapacity (29/9/2016) one of less than 12 weeks - and therefore one period of incapacity via the linking rules?

b) and thus avoid a new assessment phase on the new claim - i.e. client goes straight into support group?

I might be missing something but won’t the contributory ESA automatically go back into payment if he wins the appeal - and then the client can stay on ESA and the partner claim the IS top-up which would be more since the couple disability premium is more than the support group component - or am I being stupid?? It wouldn’t be the first time ;)

It certainly would had he remained on JSA as he would have remained the claimant.

He would need to withdraw/terminate his claim for JSA, but the appeal having been allowed that would leave him in the situation where he had LCFWRA (or LCFW) and the decision ending ESA then of no effect/having to be revised.

I’m just not sure that’s the thing that automatically happens when the wife has claimed IS…..

Surely his wife claiming IS has no effect on his contributory ESA. If he wins the appeal then the original decision that he didn’t have LCWRA is changed and his contributory ESA can be reinstated. I agree he can’t get income-related ESA as a top-up because of his wife’s IS, and the IS will have to be adjusted to take into account the cont ESA, but I can’t see anything that stops the contributory ESA being put back in payment. And I think the IS top-up is better financially the the ESA top-up as above.

Duh….wood for trees.

Edit: actually, hold on, I’m not sure that works…..s. 124 Contributions and Benefits Act prevents her claiming IS if her partner is entitled to income-related ESA. Entitled to, not ‘receiving’.

The decision to terminate ESA was one decision - there weren’t separate decisions, one ending C-ESA and another ending IR-ESA. If the C-ESA decision is revised with the effect that C-ESA is put back into payment, how can this be done without it giving rise to IR-ESA entitlement?

Mmm - interesting. I see what you’re saying - although I’m sure I’ve had similar clients before where I’ve advised them to get an IS top-up to contributory ESA because of the disability premium and it’s worked.

However, if it does mean she can’t claim IS surely it still reverts to ESA. The appeal decision will cause the original ESA decision to be revised so that there is entitlement to both cont ESA and irESA. Therefore the partner’s IS decision will have to be revised as there was a mistake as to the material fact that your client had entitlement to irESA at that time. I still don’t think there has to be a new ESA claim. The successful appeal will make it as though it had never been stopped.