My client wishes to appeal the decision that she is not entitled to IB for non return of IB50 and has claimed ESA pending the outcome. I have been searching for relevent caselaw but cannot find anything.

She says that she returned the IB50 to the Jobcentre in person within the time specified. She remembers the date that she retuned the form and what the person looked like that she handed it to but didn't get a name. She did not get a reciept for the form because was told by the person that she handed the form to that 'they didn't give reciepts because they inputted it straight on the system'.

Does anyone firstly know of any relevent caselaw of refusal of a claim due to non return of IB50 or have any experience of similar cases?

Thanks in advance.

The Department cannot treat him as capable of work unless it complies with reg 7(2) of the Incapacity for Work Regs. Have they?

2) A person shall not be treated as capable of work under paragraph (1) unless—
(a) at least 6 weeks have elapsed since the Secretary of State sent that person the first request for that information; and
(b) the Secretary of State has sent that person a further request at least 4 weeks after the first, and at least 2 weeks have elapsed since that further request was sent.

The above is entirely correct - if they have complied with this, then you have to argue that the client had good cause for non return of the IB50. It all depends on the particular facts of the case and any supporting evidence the client may have eg if they have returned forms in the past or is this the first time the PCA has been applied?
I always try an urgent review first as the client has to claim JSA if they decide to appeal - I have never had to go to appeal yet as every decision on non return has been reviewed. In the most recent case, the client never returned the form because he did not receive it, nor did he receive a follow up letter. This sounds implausible but it was accepted. I think our DM's are reasonably sympathetic!
So make as strong a case with as much detail as you can and go for urgent review rather trhan appeal first.

Thanks everyone. I am meeting with her next week - I cannot tell from the paperwork that I have whether the correct procedure was followed with reference to the regs of sending a further request for the return of the form so will need to check this before preparing the review.

re: needing to claim JSA if she decides to appeal - I had understood that she also had the option of a new claim for ESA and that an ICB appeal decision in her favour will then teminate entitlement to ESA and ICB entitlement will continue. Have I missed something?

"re: needing to claim JSA if she decides to appeal - I had understood that she also had the option of a new claim for ESA and that an ICB appeal decision in her favour will then teminate entitlement to ESA and ICB entitlement will continue. Have I missed something"?

No. However, if the proper procedures have been followed then I would ask her to try to identify the person she gave the form to and then ask the tribunal to direct that that person attend the tribunal as a witness. Its who the tribunal believes that counts.

Nevip - are you sure that someone can claim ESA in these circumstances within 6 months of a disallowance of IB/ IS for non return? I thought I read somewhere that, just as someone cannot claim ESA whilst challenging a termination of ESA due to non return of a ESA 50, the same rule applied to an attempted claim for ESA concerning non return of an IB 50?

There is nothing in the regs to stop this and the DWP’s guidance admits the position. However the DWP use the transitional regs to argue that a claim for ESA which is within the 8 week linking period for ICB should be treated as a claim for ICB and disallowed because of the 26 week rule.

I can see no basis for this. The transitional rules allow for a claim for ICB/IS to be treated as a claim for ESA. The regs only allow a claim (unless it is a claim for a period beginning before the appointed day) for ESA to be treated as a claim for ICB/IS only if the claimant “would be entitled” to ICB/IS. As the claimant in the case would not be entitled to ICB then there is no power, in my view, to treat the ESA claim as a claim for ICB. If the power lies elsewhere or the transitional regs have been amended then I happily stand corrected.

Saw my client today and submitted the appeal. Just to add further confusion, she did not get as far as making a new claim for ESA because she was advised that she would then lose the income support top up that she is still receiving, and lose entitlement to payments of reduced rate IS once the ICB appeal is recieved.

Firstly, I can't see why she would continue to recieve IS top up on the grounds of disability when she has been found capable of work for the purpose of ICB, and secondly I understood that reduced payments of IS are only made when appealing a personal capability assessment decision.

You are absolutely right - her choices are to claim JSA pending the appeal or ESA ( see Nevip's point above ). Thats why I always try for an urgent review if the client can get by on crisis loans or help from family etc - I have normally had the decisions reversed in two weeks by being persistent.

The appeal will be looked at and reviewed if possible - however in our area the BDC have a large backlog and appeals are only dealt with in date order, so it may be some time before they get around to looking at it.

You can still ask for an urgent review, pending the appeal - but you need to write separately about this and insist it gets to the DM urgently.

Lots more to update on this one.

Client called me to tell me that had made the claim for ESA - recieved a phonecall saying that claim hadn't even been processed because she couldn't make a claim for ESA whilst appealing ICB decision.

Managed to get hold of the latest Memo DMG 16/10 which clearly states that a claiment can claim ESA whilst appealing a decison that they are not capable of work on the grounds of non return of IB50. I intend to send this to the DWP and request urgent processing of ESA claim.

Called Disability Alliance advice line for a second (well about a 10th opinion actually) and spoke to a very helpful and knowledgable person who agreed that the contents of the memo were applicable but also bought to my attention that Statutory Instrument 840/2010 (social security misc amendment no 3 regs 2010) released 28th June 2010 which prevents a new claim for ESA from this date where the claiment is appealing a decison regarding capability for work or non return of IB50.

And all this on a Monday morning!