ESA and IB

hi guys

i am getting extremely confused here. This has happened to me the second time.

I have a client that i m representing for an ESA appeal. It has been lisetd in October. In the meantime she has attended to see me and has informed me that the DWP have awarded her incapacity benefit or national insurance credits. They state that

“This is because you have a certain disability or illness, so we have teatd you as meetug the threshold of incapacity under the Personal Capability Assessment. We may contact you again on or around 21.8.11 and ask you to fill a questionaire or go to a medical assessmnt.”

So the client has approached me and stated that the DWP have told her she no longer needs to continue with her ESA appeal as she will be paid income support/Incapacity benefit. Therefore she needs to withdraw. If she does not withdraw she will have to go to 2 medicals everytime she has a review

I am confused as to what the law states regarding this so i dont actually know what im advising clients. I dont really want to rely on what the DWP states should be done. and Basically i dont feel happy about advising my client to withdraw.

please help has anyone has this situation.

salma

Hi Salma

A person cannot be entitled ESA if he is entitled to IS (Welfare Reform Act 2007).  However a person can be entitled to ESA and ICB at the same time.  But here the overlapping benefit rules apply in the usual way (see reg 4 of the Overlapping Benefit Regs).

So where this happens the DWP is right.  The claimant would be subject to the hassle of both regimes, the PCA and the WCA.  However I’d want a lot more concrete info’ from the DWP regarding the entitlement to ICB before advising the client further as it sounds like a first claim and, if made recently,  could only have been made under the transitional regs.