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IB under appeal
Is someone treated as ‘incapable of work’ for the purposes of the IB linking rules while they are waiting for an appeal against the PCA ? The handbook doesn’t mention this at all but i feel it might be argued that they must be so treated as no decision as to whether they are fit to work or not has been finally made.
anyone any thoughts?
An appeal against the ICB stopping does not open up a new period of incapacity for work. If a person has claimed IS while appealing then this does not open up a new period either as the IS entitlement pending the appeal is founded on the sole ground that an appeal has been lodged against the ICB entitlement decision (schedule 1B, para 25, IS Regs). There is no provision for treating the claimant as incapable of work in these circumstances so the linking rules do not apply.
The only way to open up a new period and utilize linking periods is to request that the appeal be treated as a new claim for ICB (as well as keeping it as an appeal), or to make a new claim if the DWP refuse, providing your client can avail himself of the protection afforded by reg 2(2)(a) or (b) of the ESA transitional regs. But note the 26 week proviso that Tony mentions. Also, note, that from 1/2/11 these linking rules are revoked.
[ Edited: 11 Jan 2011 at 05:04 pm by nevip ]What are people’s views on when a client fails to attend medical examination for IB and therefore benefit is stopped (pre-Feb 2011). My current thinking is to put in a new claim for IB using the linking rules while appealing the good cause decision. The client will not receive IB until the PCA is carried out. If they were to then win the good cause for not attending decision, the IB would be backdated to the date of that decision. If the good cause appeal is unsuccessful but they pass the PCA in the new claim, IB will be backdated to the date of the new claim. If they lose the good cause and fail the PCA then they can claim IS at a reduced rate, JSA or ESA (after 6 months).
I also believe that the same rules apply if it was an income support claim on the grounds of incapacity.
Thoughts?
And me.
damn, wish i’d thought of that for a client back in september :(
How did you get on with this ?
the client decided to return to work and dropped the entire matter!
Don’t you just love ‘em at times