Can someone clarify what the options are for claimants awaiting an IB appeal. Obviously the JSA route remains, but the new claims office we use will no longer accept new claims for Income Support at the reduced rate. Appellants are invited instead to get a med cert from their GP and claim ESA even if there is no indication of a deterioration in their condition. Plainly ESA at the standard rate is more lucrative than reduced rate IS, but does the six month waiting time rule for claimants wishing to reclaim benefit on the basis of the same condition not apply to new ESA claimants previously in receipt of IB? And if the appellant would prefer for whatever reason to claim reduced rate IS rather than ESA or JSA, has that option actually gone or are the department making their own rules? And finally, if the appellant was already in receipt of IS as well as/instead of IB before they failed a PCA, does the reduced rate IS option remain for them?

Thanks

1. You can claim again with the same condition within 6 months but you will not get paid until you pass the WCA.

2. Not again! No, they are totally wrong. They are right in that you can no longer make a claim for IS on grounds of incapacity unless you are covered by the transitional regs. However the claim for IS is not made on grounds of incapacity but because the claimant is pursuing an ICB appeal (paragraphs 24 and 25 of schedule 1B of the IS Gen Regs).

It is therefore unlawful to force the claimant to claim ESA and not accept and process a separate IS claim while an appeal is pending.

3. Yes.

Thanks for your clarification on the matter Nevip, however am still a bit unsure about item 1 of your reply. The Regs (2008 - No 794) ESA regulation 30 under treating as having LCW until a determination about LCW has been made - states 'within the 6 months preceding the date of claim, been determined, in relation to the claimant's entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, etc Surely this depends on the definition taken of limited capability of work.

Then In DWP guidance there is a memo - DMG 48/08 ESA TRANSITIONAL ISSUES:
(selected part of)

ESA CLAIM FOLLOWING IFW DETERMINATION

2 Where a claim for ESA is made within six months of a

determination that the claimant


1. is not incapable of work following a PCA or


2. is treated as capable of work because they failed to

2.1 return a questionnaire or

2.2 attend for or submit to medical examination

the DM should consider whether the ESA claim should be treated as a claim for IB

where it links (see DMG 45201 - 45216). If it does not link, the fact that the DM made

a determination that the claimant is capable, or is treated as capable, of work within

the previous six months is not relevant to the ESA claim.

ESA (Trans Provs) Regs, reg 2(2)


3 A claimant can be treated as having LCW pending the WCA unless the DM has

determined within six months of the claim that they do not have, or should not be

treated as having, LCW (see DMG 42203) . DMs should note that the law relating to
IfW does not determine whether a person has LCW.

1 ESA Regs, reg 30(2)(b); 2 SS CB Act 92, Part XIIA



From this it appears on failure of IB PCA is not necessarily taken by the DWP as a failure on determination for LCW, so if this is true someone can claim ESA if they are appealing refusal to IB, & should get payment for the 13 weeks up to when LCW is determined, however I do realize guidance is not law.

Sorry about my messy attempts of copying as copying the DMG.

As a matter of interest have a client who was refused IB, then advised to claim ESA by JC+ which he did, and now been awarded it.

Hi Reg, yes you are absolutely right. I was thinking in more general terms about re-claiming within the 6 months rather than claiming ESA after ICB. My error.

Thank you, folks. I thought I was beginning to get the hang of this but I've now had an IB appellant who has just been awarded ESA pending her appeal even though a) her husband works full-time, b) she hasn't worked and paid NI contributions since 2004 and c) she doesn't meet any of the conditions which allow for earlier paid NI contributions to be taken into account. She's thoroughly unimpressed with me because I told her she'd get nothing pending her appeal. What's going on! Surely THIS must be an error?