I have been told by ESA that if my client claims JSA while appealing an ESA decision they will have to re claim ESA if the appeal succeeds.

I have always assumed that ESA would be the same as IB,the tribunal's decision overturns the DWP decision and the claimant should therefore be treated as entitled to ESA continually from the date it stopped and that any claim or payments of JSA would only be taken into account when deciding the amount of backpayment.

Are the ESA rules different, this seems like a very complicated way of dealing with the matter

Quickly glancing at this - if one wins on appeal, the situation reverts to it's original status - de ja vu - an ongoing claim. Why should one have to reclaim what one was already in reciept of?

We had a similar one - clt in receipt of ICB - lost on review, claimed ESA whilst awaiting Appeal - won Appeal, ICB reinstated back to date of review decision, less all payments made during life time of ESA claim.

My colleague has been told that an appeal for ESA is treated as a new claim.

So, if this is the case, how could someone claim JSA while appealing?

Nicky

Thu 09-Jul-09 12:05 PM by nevip

They simply have no idea of legal process. A successful appeal means the initial decision to disallow ESA no longer has any legal force and is simply swept out of existence and, as Milke says, the claimant is immediately put back into the position he was in prior to that decision and is fully entitled to benefit and must be paid immediately.

Thw Department is entitled to enquire if there has been any changes of circumstances but cannot make him make a new claim and cannot treat an appeal, in these circumstances, as a new claim. The JSA decision is simply superseded by the Department and JSA paid is offset against the arrears of ESA. Simple! Why does the Department have to complicate everything?

This is crazy - when I was working at DA, it was certainly the policy intention to simplify the process all round, for the good of claimants as well as the JC+ staff administering the system, yet local offices seem to be making up hurdles and barriers as they go along.

I don't think what we've been told is correct - i've just not had time to find the regs etc that i need in order to challenge them.

We're being told that a client who had a decision that she was fit for work, appealed and received ESA while appealing, then had quite a major operation and so rang to make a new claim - this is when the decision that an appeal is a new claim info came out and she was told she just had to report the deterioation but that she'd still need to go to appeal for the first decision.

Baffling!!! And as i say not had a chance to cross check it all yet.

Further to this I have just had an informal discussion with someone connected with ESA appeals who could not see why there would be any need to make another claim. This person felt that the rules for ESA are the same as they were for IB/JSA.

we had the same problem when people claimed jsa while awaiting a pca appeal.

not strictly a new claim but they wanted an A1 form complerted. i think this problem may have been mainly in clients with ib credits though.

Nevip wrote: "Why does the Department have to complicate everything?"

Answer: Benefit simplification!!

And now there is this, on rightsnet news page.

http://www.dwp.gov.uk/docs/simplification-guide-best-practice.pdf

It says, among other things, do:
“pause before advocating the bright idea that makes policy sense but makes overall delivery harder to achieve”

don’t:
“require staff to interpret rules using subjective judgments”.

So, good luck with all that then!

Rightsnet News story 10/7/09 re miscellaneous amendments in DMG memo 23/09 and includes an amendment which states that IS credits only claims can be revised without a new claim following an appeal. This is effective from around 13/7/09. I have had clients who have been caught out by the need to make a new claim for IS when they have been receiving JSA while appealing but it appears that the IS claim should now be reinstated without the need for a new claim. I agree with others that this should not have been necessary in the first place because a successful appeal should mean that everything goes back to how it was before the decision removing entitlement was made.

Incidentally, I was told by an ESA adviser last week that claimants who wish to remain on ESA while appealing need to request that benefit is reinstated as well as sending in medical certificates while the appeal is pending.