I've posted before about this client and this is an update query.

Client became sick in Feb 08. SSP paid only so IS top up made with sdp as middle rate care awarded. SSP ended July and claim for esa made. Then the new guidance came out. She was asked to relinquish her claim to esa so that could continue to get IS. I did consider arguing that they should have considered it as an icb claim but in the end we went with the flow and IS with dp and sdp was paid in full.

Around end Nov 09 she realised that her illness has lead to long term disability and she is unlikely ever to be able to return to working. We discusssed the merits of NI benefits vs IS and to keep her options more open for the future she decided to make a claim for ICB. I did advise the law was a bit murky on this. The response is that they have stopped her IS and have agreed to pay basic esa with sdp instead. Net result so far £27.50 less a week.

I'm wondering how best to approach this. I am aware she does not have any clear entitlement to ICB but she does have continued entitlement to IS.

Wed 06-Jan-10 03:59 PM by Martin Williams

I would have thought that the client you posted about would be able to claim her ICB.

The transitional rules were amended to ensure that someone getting IS on the basis of disability (which she is) could then claim ICB:

See Employment and Support Allowance (Transitional Provisions) (Amendment) Regulations 2008 (SI 2008 No. 2783) these add a sub para (e) to Reg 2(2) of the original Transitional rules- The Employment and Support Allowance (Transitional Provisions) Regulations 2008 (SI 2008 No. 795). So for your purposes that provision reads:

Claim for existing award

2.—(1) A claim for incapacity benefit, severe disablement allowance or income support on the grounds of disability, whenever made, in respect of a period which begins on or after the appointed day, is to be treated as a claim for an employment and support allowance.

(2) Paragraph (1) does not apply to—

<.....>

(e)a claim for incapacity benefit made by a claimant who is entitled to income support on the grounds of disability

Thanks Martin - just what I wanted.