date of ESA entitlement when a new ESA claim is made within 6 months of FTA WCA ?

Are DWP correct in this case? 

ESA ended in Feb 2010 after FTA WCA. He made a new ESA claim in May 2010 and requested 3 months backdating to Feb 2010. At that stage he could not be paid ESA due to the previous FTA.

He then attended a WCA in July 2010, was found not to have LCW but appealed. DWP have now put ESA back in payment but only from the date of the WCA which he attended (i.e. July 2010), rather than the date from which he claimed (i.e. Feb 2010).

In reg 30(3)

“Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal…”

Para (2)(b) is the bit about failing a medical in the previous 6 months etc.

The effect is that up to failing the medical you can’t get paid but for the period afterwards you can get paid up until your appeal is heard. Which is a bit strange really.