Claiming JSA while appealing ESA decision

A client failed the WCA and appealed.  However instead of continuing to get the assessment rate of ESA she claimed JSA (she was clearly not fit for work but had claimed this as she had been advised to by DWP).  The DWP’s submission states that if the appeal is successful and Tribunal decides that she has a limited capability for work that they can only limit her award until the date that she claimed JSA.  Basically there would have been no point of appealing if this is the case.

Can anyone confirm that this is the case? and if so is this just claimants who fail WCA or does it now also apply to IB/IS Claimants who are appealing PCA decisions?

Reg 31 ESA Regs treated anyone claiming JSA who had a reasonable prospect of obtaining employment as not having limited capability for work for the duration of the JSA award.  Reg 31(2)(a) further provided that this remained true even if the claimant had actually been found to have LCW.  The DWP felt the latter justified not paying arrears of ESA upon a successful ESA appeal for the period of the JSA claim (see para 43 of DMG 33/10).  I think that was legally dubious.  But even the DMG never went further, as the submission writer in your client’s case appears to have done, by suggesting that the JSA award turns the original ESA award into a fixed period expiring the day before the JSA began.  No worries though for see below.

Reg 31 above has been revoked from 1.10.10 by reg 25(1) of the ESA (Transitional Provisions, HB & CTB)(Existing Awards) (No.2) Regs 2010 (SI 2010/1907).  Although those regulations apply to those being migrated from IB etc to ESA, they have been further amended by SI 2010/2430 to make it clear that the revocation of Reg 31 applies to everyone, not just those being migrated (see reg 3 of SI 2010/2430).

The DWP have amended their Guidance accordingly.  See DMG 51/10 in particular paras 15 & 16 which reads:

15 Where
1.  the claim for JSA was made following a determination that the claimant does not have, or is treated as not having, LCW and
2.  an appeal against the decision embodying that determination is allowed

the ESA award can be reinstated, the JSA award removed following revision (1), and
payment of JSA offset against arrears of ESA in the normal way.
1 SS CS (D&A) Regs, reg 3(1)(a)

16 The guidance at DMG 42281 and Memo DMG 33/10 paragraph 43 is cancelled and should no longer be followed.

CHC, I think that resolves your instant problem.

In the past when a claimant won an IB appeal, my understanding was that any JSA awarded pending that appeal could be revised under Reg 3(5A) (D&A) Regs 99.  Where the successful appeal was against an IS decision based on incapacity it was Reg 3(7CC) D&A that revised the JSA.  In practice though, the IS or IB just seemed to be re-instated following the successful incapacity appeal, DMs taking a common sense view.