I recently represented an A8 worker at an Income Support appeal. She had completed 12 months as a registered worker but had to stop work due to losing an eye in an attack. The appeal was plain sailing and I thought that was the end of it but the DWP have written to her saying they won't pay the arrears. They say that she still has no entitlement to I.S. because after she was turned down for it back in May she submitted no further med certs while she waited for the appeal to be heard and so in their view she was not sick. Surely this can't be acceptable? The appeal was won because they said she was not a worker and was not habitually resident, claims we easily refuted. Now they won't pay for a totally different reason. Any suggestions about what I should do about this?
Thanks in advance.

Your original appeal was about the decision that she was not able to claim IS because she was not a qualified person, ie a worker. It is unlikely that the decision maker, finding against her on a preliminary point, then went on to consider whether she was within one of the categories contained in Sch 1B of the IS regs, of people entield to IS. To qualify for IS on the grounds of incapacity she would have had to satisfy all the usual conditions for being incapable of work, including the provision of medical evidence.

Tribunals may or may not give an "outcome" decision at the end of an appeal hearing . An outcome decision is one that specifically makes findings about benefit entitlement. In this case the Tribunal should ahve erred on the side of caution and only decided the preliminary point: ie, that they found that she was a worker and thus had the right to reside, and being an EU national therefore was hab res. The actual entitlement should then have been remitted to the DM for investigation.

I've been caught out this way myself, but that is almost certainly the reason.

Thnaks for your help.I see from your post what the DWP's logic is now, but she did provide med certs when she originally claimed. She didn't provide them afterwards because she had been refused IS and was claiming JSA while waiting for the appeal. She lost an eye in an attack so there should be no problem getting a med cert backdated because she has had several operations. Surely with a backdated med cert they cannot claim she was not ill?

Has to be worth trying!