My client is employed, went sick in January and received SSP fro 28 weeks, during which time he received an IS top up via premiums. at the end of the SSP period he claimed contributory and income related ESA, 'cos that's what the DWP said people had to do. Following the recent issue of DMG memo 30/09, it seems he should have claimed IB and his IS should have continued on the basis of incapacity for work. The transitional ESA regs only prevent a new claim for IB/IS on the basis of incapacity, and this was a continuing IS claim. What would be the mechanism for getting him switched to IB/IS. Do I just ask the DWP to correct their error, treat the ESA claim as a claim for IB and reinstate the IS?

I would put in a late appeal. Misadvice by the DWP is a good reason for lateness and it must still be within the 13 months.

Appeal against the supersession that ended the IS award. Not sure if you can appeal against the decision to treat the ESA claim as an ESA claim when it should have been treated as an Incap claim though.

I like the last para of DMG 30/09, suggests they are panicking about how they are sort out all the other cases like yours that they have messed up.