IB appeal allowed ESA appeal disallowed

Client taken off of IB - appeals and claims ESA.  Fails the LCW test and so taken off of ESA.

Client had his IB appeal and ESA appeal heard together - the IB appeal is allowed and the decision of the S of S set aside.

The ESA appeal fails and the client is found not to have LCW.

I think i’m confusing myself with this one and maybe thinking it’s going to be more complicated than it actually is…..........

Does the IB appeal being successful mean that IB will merely be reinstated and we can ignore the ESA decision or does the IB only get paid up to the date of the ESA decision and so we need to follow up the ESA decision and get the statement of reasons?

The IB is re-instated.  Para 19 of DMG 16/10 referring to a situation where a person is entitled to ESA and IB credits states as follows:

“ If the claimant ceases to be entitled to ESA at a later date, for example because they are found not to have LCW, they remain entitled to be awarded credits as long as they are incapable of work.”

The above should equally apply to contributory IB which is retrospectively restored upon a successful appeal as here. 

The DWP apparently changed their interpretation of the law to allow simultaneous entitlement to IB and contributory ESA subject to the overlapping benefit rules (the ESA being a weekly benefit overlaps the IB being a daily one) because they found that some clients would have received more ESA than IB had the DWP not been revising the ESA upon a successful IB appeal, as had apparently been the case prior to DMG 16/10.  Hence the new interpretation in DMG 16/10.  Proof if it were needed of the kind, caring DWP.

Thing is, Reg 3(1) of the ESA Trans provisions Regs appears to rule out entitlement to ESA and IB at the same time.  The current DWP interpretation, however, doesn’t appear to penalise the claimant except to the extent that they might have to attend more medicals to retain entitlement to ESA and IB rather than to just one of them.

I meant to add that it might, therefore, be advantageous to the client to appeal the ESA only where he stood the chance of being awarded more ESA than IB upon winning the appeal.

Thank you, much appreciated.