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Incapacity Benefit Appeal allowed on the same day as the ESA appeal….what happens next?
I know i’m being really lazy but with a full day of appointments today i thought it worth an ask as someone’s bound to know off the top of their head….
My client appealed an IB decision which we had to take to UT this was remitted for new hearing at first tier tribunal. In the meantime he claimed ESA and was refused that too and again appealed.
Both were heard on Friday and both were allowed - IB reinstated from 03/06/10 and ESA from 26/10/11.
Anyone any idea please what will happen next?
IB and ESA overlap: ESA (weekly benefit) topped up by IB (daily benefit) & if they convert him the WCA determination is binding for that.
But he’s not been through conversion…..
Yes I know, thinking ahead a bit “if they convert him..”
So you’re thinking same as me? He should revert back to IB until they convert him? I’m going to have to actually do some research aren’t i! :( lol!
This should cover the issues you have raised. In short if better on IB then he can ask for that to be paid as if the decision to refuse had never been made he could not have made the claim to ESA. I hope this helps
I don’t think I’ve been very clear with my previous posts. He doesn’t need to ask for anything: he has been awarded IB and ESA and there can be entitlement to both benefits at the same time. What gets paid comes down to the overlapping benefit rules. The effect is usually that IB is paid as a top up to ESA so that overall he would have the same amount of money as he would have with just IB. However the ESA entitlement is valuable because reg 7(2) of the conversion regs:
Where P is entitled to an award of an employment and support allowance under the 2007 Act and it has been determined in respect of that entitlement that P—
(a)has limited capability for work, or.
(b)is to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations,.
in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work)
So he doesn’t get any more money due to being on ESA but when they get round to converting him he doesn’t need a new WCA they should just adopt the existing decision that he has LCW
Fair point but would that not also mean he has to take part in WRA and so he could decide he does not want to continue with the ESA claim?