Hi there,

A question on behalf of one of my colleagues.

She is working with someone who was on income support due to being a lone parent, who was told she was no longer entitled, so claimed JSA, after a while she felt she was not fit for work and claimed ESA. She later had a letter saying she was wrongly advised on her original income support claim and was told she could make a claim for income support. We did this on the basis of incapacity and it has been approved this week so she is now claiming IS and her entitlement has been backdated to the time the original IS claim was stopped.

However, in between this she failed a medical while on ESA, we appealed and have been waiting for a tribunal date. Do you think she will be expected to attend a tribunal for ESA as it has been agreed that she should have been, and is now, claiming Income Support?

The various claims have been continuous, no gaps. The local DWP are being a bit vague on the issue of whether she should attend. Any ideas?

Many Thanks

Two questions.

Is she more likely to satisfy the WCA or PCA? Presumably if the PCA (applicable for income support) applies she will have to undergo it sooner rather than later.

Which would she be better off on?

She can always withdraw her appeal at any time before the hearing by contacting the Tribunals Service (must be in writing).

If she has already opted to have her IS reinstated and this has been paid continuous then there is no award of ESA and the appeal should lapse.

See Memo DMG 41/09 which confirms the action the DM should take

APPEALS
7 It is possible that some claimants who have been incorrectly awarded ESA will have been for a WCA and have been found not to have LCW. See DMG Chapter 42 for guidance. They may have appealed this decision and will still be receiving ESA (known as a “pending appeal award”). If the claimant wishes to retain ESA and pursue the appeal then no decision needs to be given. However, in cases where the claimant contacts the Department regarding the termination of IS the DM should revise both the decision to terminate ESA and the “pending appeal award”. The ESA awarding decision will need to be revised and IS should be re-instated as in paragraph 5 above. The DM should notify the TS that the appeal has lapsed. Similarly if a claimant has appealed the IS termination action should be taken as in paragraph 5. The appeal will again lapse.

Thanks guys. I thought the answer was probably along those lines but always good to have back up.

My colleague tells me that her client has now received a medical questionnaire (not sure if it's a PCA or WCA) for her IS so the saga will no doubt continue....

If it's an IB50 it's for PCA, if an ESA50 for WCA.

I think!