ESA, whilst appealing PCA

Am I correct in thinking that claiming ESA, pending a PCA appeal is no longer an option, following the introduction of the SS(Miscellaneous Amendments) (No.3) Regs 2010, which has inserted paragraph (c) into Reg. 30 (2) ESA Regs.

Thus a claimant will not be treated as having limited capability for work if within 6mths of the date of claim it has been determined in relation to IB that the claimant is capable of work. 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 or
(ii)  a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened.

So where the claimant has failed the PCA, unless conditions (i), (ii) are met, s/he is not entitled to ESA, as s/he will not be treated as having LCW.

I have not managed to find anything in the new regulations or existing ESA or IFW regulations that states that if a client has lodged an appeal against a PCA decision, s/he will be able to claim ESA pending the outcome of the appeal.  Is this right or have I missed something?  If I have missed it, what is the relevant regulation?

I am aware that clients have other options such as reduced rate IS or JSA, but in the case I was dealing with the client had already gone down the ESA route, and was told that they could not decide the ESA claim until he had undergone a WCA. Also, I would like to know for future reference, whether ESA is now discarded as an option or not, within 6mths of the PCA determination, unless there is a new disablement or a significant worsening of the existing disablement.

I would appreciate your thoughts/ comments.

Thanks in anticipation.

As I have not had a response, I will rephrase the question.

Client is getting Incapacity Benefit, is called in for PCA, but fails the PCA.  He appeals the PCA, and makes a claim for ESA pending appeal.  DWP, however do not pay him ESA, instead they do a “determination” that he is not entitled to ESA, until he has undergone a WCA. They state that this is based on the new regulations which were issued in June.

These new regulations have amended the ESA Regulations, inserting paragraph (c) into Reg. 30 (2)(c) ESA Regs.  This states that a claimant is not treated as having limited capability for work, if they have been found capable of work for IB or incapacity credits, within the 6 months preceding the date of the ESA claim.

However, I have not managed to find anything in the legislation, which states that they will be treated as having limited capability for work when they have appealed the PCA.  If the regulations are silent on this, then am I right in assuming that ESA cannot be paid pending the IB/ PCA appeal, unless they have undergone a WCA.

In their guidance memo, DMG 33/10, paragraph 19 refers to a previous memo which explains that the claimant can get ESA whilst pursuing an incapacity for work appeal.  But this is not the legislation, and I would like to know where we stand on this.

Alas, the DWP seem to be correct. Take a look at:
http://www.cpag.org.uk/cro/wrb/wrb216/ESA_appeals.htm
and this paragraph in particular:

from 28 June 2010, when the amending regulations referred to above insert a new subsection (2)(c) into regulation 30 of the ESA Regulations. This will preclude a claimant from getting ESA pending assessment under the WCA within 6 months of a decision that s/he is capable (or treated as capable) of work. However, Regulation 30(3) is not amended, so that pursing an appeal against such a decision does not exempt the claimant from the ‘six month rule’. In short IB / IS claimants who fail the PCA will no longer be entitled to be paid ESA while appealing. Their options will revert to the pre-ESA position of claiming IS reduced by 20%, or JSA.

Thanks for clarifying that.