Tactics pending appeal against FtT decision on LCW

Clt failed LCW 6 Nov 09. Tribunal 24 Jan 11 (!) upheld decision. We have asked for SOR.

Clt gets DLA and has told me she can get by without ESA pending UT decision.

She could (I think) re-claim ESA as more than 6 months have elapsed since previous determination. Or claim JSA.

Any other ideas or observations?

But is the tribunal decision a new LCW decision? We had a thread on this back in Oct (sorry, can’t do links) as to the meaning of Reg 147A. I think the general concensus was that it wasn’t (also see DMG memo 33/10 para 53- the ‘Amy’ example). I’m still not certain.

Surely (pardon the leslie Neilsenism) the 6 months period should be from the date of the disallowance decision under appeal.

I think the crucial distinction here is between the determination of LCW and the treated as bit in reg 147(A)(5). Because the ammendments seperated (1) the claim where there was an objectionable decision on LCW and (2) a new claim treated as made in the appeal, the tribunal decision will tend to only relate to a short period. eg if at week 14 you fail WCA, found not to have limited capacity etc. ESA stops. When you appeal a new claim starts from the day after, unlinked etc to the one which is subject to appeal.

When the tribunal makes a decision it only affects this earlier claim (1) so if the tribunal puts you in the WRAG, the effect of the tribunal decision is one weeks WRAC (in my week 14 example). The tribunal decision does not directly affect the new claim and the actions of the DM on claim (2) is the governed by 147(A). Para 5 of this regs says the DM should the treat you as not having LCW if you lose your appeal and para 6 says they are generally compelled to adopt the tribunals determination that you have LCW if you win.

So the supersession which after an unsucessful appeal stop you being entitled to ESA is based on a determination to treat you as not LCW under para 5. Being within 6 months of this decision is not a problem because reg 30(2)(b) only applies to actual determinations of LCW or treated as determinations under reg 22 and 23. Treating someone as capable under reg 5 is not mentioned so the exclusion does not bite.