IB/ESA award following successful Lower Tribunal re PCA

Following successful lower Tribunal re Personal Capability Assessment client has received letter ( not yet viewed by self) from DWP stating he will be receiving ESA with IB top up.

does this sound correct ?  As far as I know hes never claimed ESA.  Prior to the tribunal he was in rceipt of IB

Thanks in advance,

Toby

TJL - 24 November 2010 03:36 PM

Prior to the tribunal he was in rceipt of IB

 

Surely this cannot be correct.  He may have been receiving IB prior to the decsion but between the decsion and the tribunal (usually at least 6 months) he would not get IB.  He may have received reduced rate IS or he may have claimed and received ESA. 

Victor

Probably under the migration regs:

In force from 1st November
http://www.legislation.gov.uk/uksi/2010/2430/made

The notes to the ammendment say:

Regulation 4 amends regulation 7 of the Migration Regulations (qualifying for conversion) and applies where a person’s existing award qualifies for conversion, but that person is already entitled to an award of ESA. This could happen where a person previously in receipt of an incapacity benefit award: (i) appeals the decision to terminate their entitlement, (ii) claims and is entitled to ESA whilst awaiting the outcome of the appeal and (iii) is successful in their appeal and therefore becomes entitled again to incapacity benefit. Regulation 7 of the Migration Regulations as amended by regulation 4 provides that such a person is to be taken as having satisfied one of the basic conditions of entitlement for ESA, namely that the claimant has limited capability for work.

They would have had to claim ESA for this reg to bite, so if they didn’t then you’re no further forward