I always understood that if a claimant claimed ESA while an IB/IS appeal was pending and then won the IB/IS appeal the ESA claim was null and void as they were in effect already deemed incapable of work before they made the ESA claim. I have spoken to the DWP about this and they have (so far ) said they are not sure that this is the case as there may have been some sort of rule change quite recently - has anyone any ideas?

Im having this same difficulty.

DWP are insisting client reclaims IS even though they accept they have "rebuilt" his ICB claim as a result of the successful PCA tribunal. As this was only for credits cl is without money until he reclaims the IS. Various reasons have been given why they can rebuild the ICB but not the IS - they need to check cl was on no other income (he was on IBESA throughout so they know what he was on), for example.

About a couple of years ago we had the same problems but with PCAs until we complained enough to get the DWP to see sense.

This is what Im doing now but so far no luck.

Thanks for your reply, this is pretty much what has happened, we have had to reclaim IS with al the inevitable delays and complications that can entail.

Tue 23-Feb-10 11:46 AM by nevip

This is wrong. The actual decision under appeal in credits only (or separate ICB/IS cases) is the IS (and where applicable ICB outcome decisions) outcome decision, i.e. that a person is not entitled to Income Support. The decision that a person is not incapable of work is simply a determination necessary to that decision.

What the tribunal does is to reverse that process by making a different determination with the end result being that (in law) the person is consequently entitled to IS, the original decision removing IS having no legal force.

The consequence of this is that the Department must re-instate IS asap. A fresh claim is not necessary as he is already entitled. The Department is perfectly entitled to enquire as to whether there have been any changes of circumstances but it cannot demand a fresh claim.

That is pretty much what I said to them (I don't have Nevips way with words though!). The only reason I can think of for the application was that he had claimed both JSA and then ESA while the appeal was pending and as IS, ESA and Income based JSA are all mutually exclusive I can see why they might THINK a new claim was needed.

Has anyone any caselaw or regulations to back up the view that a new claim is not necessary?

I was slightly in error on my earlier post. The decision to stop awarding credits must be a decision under appeal (the IS decision does not have to be explicitly appealed in PCA only cases) but that neither adds nor detracts from my main argument.

See CIB/2338/2000.

My colleague has a similar one. Client was a credits only IB claim. Claimed ESA whilst IB under appeal. Failed WCA so ESA then under appeal but in meantime IB appeal successful. Local office saying has to stay on ESA now. I've sent in a letter and am awaiting the reponse.

DMG memo released last week regarding the issue. DMG Memo 16/10.

Interestingly the DWP point out that you can be entitled to both IB and ESA at the same time so that overlapping benefit rules come into play.

hi

here's a link to DMG Memo 16/10

cheers ros

DMG memo 16/10: April Fools early this year!

I know it's early in the morning and I am not very bright until the second cup of tea goes down but am I alone in finding this memo all but indecipherable!

...not that early for me but still on my first cup so I might get to grips with it by the third cup later today. thanks for the info and link though (I think)