We have a client receiving SDA who mistakenly claimed ESA instead of IS. The DWP sent out an A1 form but our client failed to return it in the required time and it was decided she had not made a valid IS claim.

CPAG p.991 states: "If you claim ESA and you would be entiled to IS...under the linking rules...your claim should be treated as a claim for IS". That is a referrence to Reg 3(2) of the ESA (transitional provisions) regs 2008.

On that basis, could we argue (in a late appeal) that the original ESA claim form she submitted should have been treated as an IS claim, without it being necessary for the DWP to send out an A1 claim form?

If so, would this reg 3(2) argument not conflict with reg 4(1A)(a) of the claim & payments regs, which states an IS claim "shall..be made on a form approved by the Secretary of State for the purpose for which the claim is made"?

I would be grateful for any opinions on this.

I would argue that the ESA claim can be treated as a defective claim. However, under reg 6(1A) of the C&P Regs the claimant has 1 month to remedy that defect by returning a duly completed IS form.

However, if the ESA claim is treated as a defective IS claim then under reg 7(A) the DWP must inform the claimant of the defect and advise him of the requirements of reg 6(1A) (basically the 1-month requirement). If the IS claim was received by the DWP outside the month and he was not advised as to the requirements of reg 6(1A) then go for an ex-gratia payment based on loss of statutory entitlement because of official error.

If the IS claim was returned outside the month then it might be worth puruing the appeal to see if the tribunal can decide, as a determination, that the ESA claim should or could be treated as a defective IS claim.