Discussion archive

Top Incapacity related benefits topic #4607

Subject: "When is an ESA appeal determined?" First topic | Last topic
bensup
                              

Benefits Supervisor, Barrow-in-Furness, Cumbria Citizens Advice Bureau
Member since
24th May 2004

When is an ESA appeal determined?
Thu 19-Nov-09 12:32 PM

Client appealed ESA decision and got ESA in the interim.

Appeal failed at Tribunal and we have requested full statement and clients ESA has stopped.

The rule for IS at the reduced rate when appealing an IB decision was that it continued until the appeal was "determined" which meant untill any possbile action such as appealing to the commissioner was done.

Does anyone know off the top of their head whether it's the same for ESA?

Thank you

  

Top      

Replies to this topic
RE: When is an ESA appeal determined?, Damian, 19th Nov 2009, #1
RE: When is an ESA appeal determined?, Dolge, 19th Nov 2009, #2
RE: When is an ESA appeal determined?, bensup, 19th Nov 2009, #3

Damian
                              

WRO(Health), Salford WRS
Member since
23rd May 2005

RE: When is an ESA appeal determined?
Thu 19-Nov-09 12:54 PM

Its different. Reg 6 of the ESA regs says when you are persuing an appeal your assessment phase does not end until "the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998". This covers only the lower tribunal not the upper tier tribunal.

  

Top      

Dolge
                              

Senior Adviser, Wirral Welfare Rights Unit
Member since
07th Sep 2009

RE: When is an ESA appeal determined?
Thu 19-Nov-09 01:10 PM

No, it's not the same

The rule is in Reg.30(3)ESA Regs. It takes the form of an exception to the general rule that submitting new med. certs. does not requalify you for ESA following a decision that you do not have LCW. 30(3) allows you to continue to qualify, with new med. certs, at assessment phase rate, as long as 'the appeal had not yet been determined' by a first tier tribunal. Reg.30(2) of course allows you to requalify with a new condition.

There is an interesting point whether, on setting aside of a tribunal decision either by the TS or by the UT, this route to entitlement is automatically reopened but I don't think it's arguable that entitlement can continue while you are asking for an SoR, applying for leave or appealing to the UT.

In practice though, by this stage, you will normally be close to or at the 6 month point since the original decision disallowing ESA. You can then make a new cklaim for ESA, with new med certs, attend and fail a new medical, appeal again and, as far as I can see, stay on this roundabout for as long as your GP will provide sick notes. Ironic given that both goverment and GP's are keen on removing the GP's role as gatekeeper for benefits.

Richard Atkinson

  

Top      

bensup
                              

Benefits Supervisor, Barrow-in-Furness, Cumbria Citizens Advice Bureau
Member since
24th May 2004

RE: When is an ESA appeal determined?
Thu 19-Nov-09 03:10 PM

Thanks to both of you - very much appreciated.

Nicky

  

Top      

Top Incapacity related benefits topic #4607First topic | Last topic