IS arrears further to successful IB appeal/ESA claim

Need some guidance on this if anyone has a moment it would be appreciated.

My client was in receipt of Income Support based on incapacity and failed the PCA on 29-09-09 her appeal was heard 09-11-10 and disallowed although we successfully got this set aside and the second tribunal allowed her appeal. However the 2nd tribunal was not heard until yesterday and allowed and so decision of 29-09-09 set aside but in the meantime client had to claim ESA in November 2010 as her Income Support, which was being paid less 20% stopped based on the disallowed appeal.

As I understand it the clients appeal being successful means that Income Support should be restored to full rate including the disability premium from the 29-09-09 but only until the date of the claim to Employment and Support Allowance? Or is there anyway that the client can argue it should continue I think this is non-starter as since her claim to Employment and Support Allowance she has failed the limited capability for work assessment and that decision is now under appeal and due to be heard on 16-02-12.

Any indication of what arrears are due other than as indicated above, if any, would be helpful as would any different opinions on these facts if appropriate.

Hi,

I have had two similar cases and in both I managed to argue that ESA should be closed and IS reinstated. I was faced with the same problem as you on one of them, the client failed the WCA on the new ESA claim but I argued he should never have been subject to the WCA in any case and was now entitled to continue to receive IS with the dis premium. I requested a postponement of the ESA appeal to allow DWP time to decide the IS claim based on the FTT decision, which was allowed. I believe the postponement strengthened my case with DWP and after much wrangling they agreed to reinstate IS, close the ESA claim and offset any ESA paid against the arrears owed.

Effectively, in this case, DWP must revise the decision to disallow IS, which in turn means the client was not entitled to claim ESA. The DM must therefore revise the decision to award ESA and close the claim. Problems I encountered related to DWP processes, ie: system would not allow them to reopen the IS claim while there was a “live” ESA claim. SO, they had to manually rebuild the IS file before closing the ESA claim. Still worthwhile in my view because it gives the claimant transitional protection on migration. Hope this helps.

That’s great. Something doidn’t seem right to be honest.

See DMG 16/10 for more info:
http://www.rightsnet.org.uk/pdfs/DMG_Memo_16_10.pdf

For IB/ESA:
A client can end up with entitlement to both IB and ESA (The IB will be paid with underlying entitlement to ESA and a top up of ESA(IR) if ESA pays more) - see paras 10-12

For IS/ESA
For IS and ESA the client can either withdraw their claim to ESA, or if ESA is paying more than IS (eg if in support group) the award of IS can be superseded by the award of ESA - paras 20-22

Phil,

Many thanks for this. Have submitted an adjournment request to the tribunal with a copy of our letter to the DWP seeking IS based on IB credits is reinstated. So we shall wait and see.