More appeal confusion

This is really turning into a mess- will almost be glad when everyone has been transported (or whatever the expression is!) onto ESA.

Client was receiving IB (LTHR with age addition) but failed PCA. Appeal lodged. I advised her to claim IS (appeal rate) whilst appeal ongoing. To slighly complicate things, she would actually have had entitlement to IS for some time as DLA MRC in payment (therefore she attracts SDP). Client hadn’t been aware of this until we alerted her to it. Client tried to claim IS but, probably due to confusion or misadvice from contact centre, has claimed ESA instead. Claim not yet in payment as within 6 months of failed PCA decision so they’ve arranged WCA medical (scheduled for early next week).

The dilemma is what we do next- we could sort out the ESA/IS cock-up (which will take time) or (which is her preferred option at present) wait & see what outcome of WCA is. If she passes, once WRAC and SDP included, only loss would be the lack of DP for first 13 weeks of ESA claim. There again, if she fails and appeals, can she receive assessment phase rate ESA pending appeal being heard? I don’t think she can (in which case we’ll have to revisit IS issue) though it will probably be worth lodging appeal against WCA decision on basis that sooner or later she’s going to be migrated to ESA anyway.

It seems to me this whole area (ongoing appeals & ESA/IB/JSA/IS) is getting increasingly messy….

On ESA at the assessment rate she stands to get £119.10 per week (inc the SDP) while she appeals.

On IS she stands to receive £134.01 per week, reduced rate personal allowance + DP + SDP while she appeals.

I’d be pursuing the IS and leaving the ESA until she really has to.

Hi 1964

I think she can claim ESA whilst appealing should she fail the WCA.  That’s because, as you know, Reg 30(1) ESA is satisfied if the conditions in 30(2) are met. 

Reg 30(2) as amended has an “or” at the end of 30(2)(b) which I interpret as meaning that you satisfy para (2) if you meet (2)(a) and either (b) or (c).  Consequently, she would meet (2)(a) and (b) and, therefore, satisfy 30(1).  She’d meet (b) by virtue of the exemption under 30(3).

She could of course potentially end up on both ESA and IB whilst waiting for migration should she win both appeals.  That would be determined by DMG 16/10.

On looking at this again I think you might be right.  If 30(2)(b) does not apply due to 30(3), then that still leaves 30(2)(a) and (c) to be met.

Because she’d still be within 6 months of failing the PCA, she wouldn’t meet 30(2)(c), couldn’t, therefore, satisfy 30(1) and consequently couldn’t claim assessment rate ESA whilst appealing the failed WCA.

That’s what I thought Tom- thanks for the clarification.

Nicky- I know what you mean. On the other hand, if client does pass WCA, from week 13 onwards ESA will be £145.05 pw (presuming WRAC rather than SG, though SG is a possibility)- hence she will potentially only lose out for first 13 weeks of ESA claim (and as it will be at least a year to get to the appeal hearing on current form, thats significant in the short term at least). However, if PCA appeal succeeds, IB/IS would be £147.10 pw…

Think I will have to lie down in a darkened room for a while!