No assesment phase on ESA applicable if IB appeal failed in last 6 months?

I wonder if anyone out here can help me. My client failed her PCA early July 2010, appealed and lost appeal in November 2010.
Due to stress of medicals, appeals etc her condition has worsened to the effect she is now on medication for her anxiety and depression for the first time in many years and cant go out on her own any more. As the IB road is now closed due to failed appeal JC+ recommended a JSA claim. Client does not feel she can face JSA conditions and reckons she would be sanctioned within a week or so as she feels unable to fulfil her Jobseekers contract.
I recommended an ESA claim however JC+ have said that although the ESA claim is live she will get no actual payment until she gets her WCA so no assesment phase is applicable. JC+ said the rules were changed in July about this. I asked what she was supposed to live on for the next couple of months and she recommended JSA(again!) Her JSA claim was refused anyway as an ESA claim was live but no payments yet in place. Is this right? I can find regs regarding this if an IB appeal is in place during a new ESA claim but no appeal is in place anymore. Is she entitled to any ESA payments or must she wait until her WCA. Will any payments be backdated to 18/11/2010 (when she made the ESA claim by phone) or only from her WCA date?
Any help would be appreciated.
Thanks all you lovely people out there!

If it is accepted that she has either (a) a new conditon or (b) a significant deterioration in her previous conditon, then she can be paid ESA pending a medical.  In my experience (b) is hard to show without very good medical evidence. 

If these are not accepted then she gets no ESA until after her medical.  If she passes the medical she will get ESA backdated to the date of claim. 

I think it is Reg 30 but do not have this to hand.

Thanks for the reply. I have asked her GP to state that her condition has worsened (she is now on medication but she wasnt during her IB claim) Unfortunately he hasnt done this so i may have to ask my client to push the point.
I still cant find the new reg 30 since it was changed in June 2010.

From the blue volumes:

30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be
treated as having limited capability for work until such time as it is determined–

(a) whether or not the claimant has limited capability for work;

(b) whether or not the claimant is to be treated as having limited capability for
work otherwise than in accordance with this regulation; or

(c) whether the claimant falls to be treated as not having limited capability for
work in accordance with regulation 22 (failure to provide information in
relation to limited capability for work) or 23 (failure to attend a medical
examination to determine limited capability for work).

(2) The conditions are–

(a) that the claimant provides evidence of limited capability for work in
accordance with the Medical Evidence Regulations; and

(b) that it has not, within the 6 months preceding the date of claim, been
determined, in relation to the claimant’s entitlement to any benefit, allowance
or advantage which is dependent on the claimant having limited capability
for work, that the claimant does not have limited capability for work or is to
be treated as not having limited capability for work under regulation 22 or
23 unless–

(i) the claimant is suffering from some specific disease or bodily or mental
disablement from which the claimant was not suffering at the time of that
determination;

(ii) a disease or bodily or mental disablement from which the claimant was
suffering at the time of that determination has significantly worsened; or

(iii) in the case of a claimant who was treated as not having limited capability
for work under regulation 22 (failure to provide information), the claimant
has since provided the information requested under that regulation.

(c) that it has not, within the 6 months preceding the date of claim, been
determined, in relation to the claimant’s entitlement to any benefit, allowance
or advantage, which is dependent upon the claimant being incapable of
work, that the claimant is capable of work, or is to be treated as capable of
work under regulation 7 or 8 of the Social Security (Incapacity for Work)
(General) Regulations 1995 (“the 1995 Regulations”), unless–

(i) the claimant is suffering from some specific disease or bodily or mental
disablement from which the claimant was not suffering at the time of that
determination,

(ii) a disease or bodily or mental disablement from which the claimant was
suffering at the time of that determination has significantly worsened, or

(iii) in the case of a claimant who was treated as capable of work under
regulation 7 of the 1995 Regulations (failure to provide information),
the claimant has since provided the information requested by the
Secretary of State under that regulation.

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an
appeal against a decision that embodies a determination that the claimant does not
have limited capability for work and that appeal has not yet been determined by an
appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998

However, Reg 30 above was inserted by reg 9(8) of SI 2010/840.  That provision inserts the word “or” at the end of Reg 30(2)(b) with the effect that 30(2)(a) must be satisfied but there is a choice between satisfying condition 30(2)(b) or (c).  As can be seen above, the blue volumes have not reproduced the word “or” separating (2)(b) and (c).  However, I think the SI has to be followed.  If that’s correct then the draftsman does not appear to have achieved his purpose, ie to stop, without a WCA or an accepted worsened/new condition, someone being paid ESA within 6 months of a failed PCA.  In your client’s case, in order to claim ESA now it appears all she needs to do is satisfy 30(2)(a) and (b), which she does, and it’s irrelevant that she doesn’t satisfy 30(2)(c).

Thanks for all your help guys. I found the SI regs inc the new modified conditions and the relevant stuff is as below.

“Preventing immediate payment of Employment and Support Allowance for the same
incapacity when IB is disallowed
7.15 Regulations are amended to prevent a claim for Employment and Support
Allowance, and consequential payment of the assessment phase rate of that benefit,
where there has been a recent disallowance of Incapacity Benefit following a medical
assessment. A claim can succeed however where there is clear evidence of
deterioration in a person’s medical condition or where a new condition applies.
Payment may also be made where the disallowance related to the failure to provide a
personal capability assessment questionnaire but that has since been provided. This
provision will apply where the disallowance occurred in the six months before a claim
for Employment and Support Allowance. This approach reflects the policy that
applies where Employment and Support Allowance is claimed following a
disallowance of benefit as a result of a work capability assessment. It also reflects the
policy that applied to Incapacity Benefit”

All i need to do now is convince her GP of the necessity of stating clear evidence of deterioration of her medical condition.
oh well - got to go now to fight the good fight and all that.

Best wishes to all for the season!