we have had an appeal in dundee where the chair has told our rep that the date in the submission was incorrect.

for esa we have been following a similar procedure to incapacity where we requsted the decision be set aside from that date and the person be considered to have limited capability for work.

this chair has suggested that the date we should be using is 13 weeks following the original claim to ensure the proper backdate. she quoted the following regulation:

The assessment phase – claimants appealing against a decision
6. Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(72).


from reading that i cannot see why using the date of decision that the person is fit for work makes a difference as the reg states the assessment phase ends when the tribunal make a decision. no other chair has made this comment.

anyone had similar or any thoughts on this?

I’m not sure that I follow your posting so apologies in advance. Regulation 7(38) of the Decisions and Appeal Regs states:

Date from which decision takes effect:

(38) A decision made in accordance with regulation 6(2)(r) that embodies a
determination that the claimant has limited capability for work which is the first such
determination shall take effect from the beginning of the 14th week of entitlement.

Regulation 6(2)(r) states:

(r) is an employment and support allowance decision where, since the decision
was made, the Secretary of State has received medical evidence from a health
care professional approved by the Secretary of State for the purposes of
regulation 23 or 38 of the Employment and Support Allowance Regulations.

So regulation 6 of the ESA Regs gives the power to the Department to keep the claimant on the assessment phase rate until the date of the tribunal but the D&A Regs allow for the increase to be paid from the 14th week of claim if the appellant wins his appeal.

Is that of any use?

sorry i pasted the reg in my original post.

it looks like they are requesting we specifically ask for the additional component (support group or lminited capability group) be backdated to when the assessment phase should have ended.

just to ensure the dwp dont just backdate the additional component to the date of decision.

really you would have hoped it wouldnt become an issue but with the dwp you never know.

There should be no need to specifically request this at the tribunal stage, but I have only concluded 2 ESA appeals so far (both successful) and in both cases the DWP have calculated the arrears from the date of their decision (clearly wrong) rather than the date of claim + 13 weeks (as they should).

A quick phone call has sorted it out in both cases but I wonder whether your tribunal is aware of a wider problem and is trying to be helpful?

Sue