ICB appeal and ESA on the same day.

My client was in receipt of ICB, but failed PCA. Decision dated 17/01/2011. Client appealed this decision and immediately claimed ESA from 17/01/2011. He then failed WCA. Date of decision 25/05/2011. Client appealed this decision. Both appeals have been listed to be heard 18/10/2011 at 10 .00. A one hour slot has been allocated.
I am in the process of drafting a submission for each appeal. However, I was thinking. Even if client wins the ICB appeal he will not be paid any backdated ICB and he will not be eligible to receive ICB, because he has subsequently claimed ESA. Also ICB claimants are being converted to ESA anyway. So my reasoning is that to continue to receive a disability benefit client will have to win ESA appeal, despite the outcome of the ICB appeal. Should this be reflected in my submissions or have I got it wrong?

I haven’t got any references to hand, but back in the day before migration decisions, in cases such as this the DWP would be putting the IB claim back into payment, rather than argue about ongoing ESA claims.  I’ve got someone in the same position, except they won their IB appeal before the ESA appeal has been listed.  The DWP have confirmed that they will restore the award of IB, but they haven’t actually done it yet.  If it’s not done by the time of the ESA appeal, we’ll be asking for an adjournment with directions to DWP.

Of course, a migration ESA50 will be sent out in near future in any case, but I think it’s the IB you need to concentrate on.  More chance of winning, too.

Round here if both are listed together, the ICB is heard first and if that is won the appellant is then invited to withdraw the ESA appeal.

Thank you both. I think I’ll put the migration issue to one side for the moment. I’ll do what I originally intended. That is, write 2 appeal submissions of equal weight and hope ICB appeal is successful and then the client has the opertunity to withdraw the ESA appeal.