IS to ESA failed to attend

client failed to attend a medical for migration.
I appealed but I have advised that he must claim JSA..

Do I appeal IS/ESA or does he sign on…?

My understanding would be that your client would need to claim JSA in order to receive benefit. I would advise this client to appeal the ESA whilst claiming JSA with a restricted Jobseekers agreement ( I think they can still do this if they are appealing an ESA decision). As it is a failure to attend the client cannot be paid ESA whilst waiting to see if the good cause is accepted.

Your client can’t get ESA pending the appeal, as it was a failure to attend the medical. As less than 6 months have elapsed since the determination, if he re-claims ESA, he will not be paid until he has undergone a new WCA assessment, unless he has a new condition or his existing condition has significantly deteriorated.  If the latter he should certainly make a fresh claim with medical evidence.  Otherwise he would have the option of JSA, as above…..

I understand but this is a migration from IS to ESA…
technically he was still in receipt of IS…

The ESA migration has removed his IS entitlement. Unless he is a carer or lone parent he has no grounds to claim IS anymore. He either claims JSA or makes a new ESA claim.

What I’m never clear about is compared to what do they judge whether it is a new or worsened condition to determine whether new claims can be paid pending assessment for these migration cases.

For example, if someone claimed IB or IS 10 years ago, gets assessed for ESA now and doesn’t do ESA50 or attend assessment, they then have their IB or IS stopped, they then make new ESA claim.

Against what is the basis of the new ESA claim compared to, to establish if it is a new or worsened condition? Almost everyone’s condition would be new or worsened than the original IB or IS claim years ago. Or alternatively if no ESA50 was completed and the assessment was not attended the recent ESA migration decision would usually be based on no info at all, so any condition would be new or worsened.

Jane

I had a client in similar situation and was pleasantly surprised to have been handed a get out by a decision maker.
Cl referred to me in Jan 12 with new claim form for ESA.  Cl very confused and not able to tell me why he had not been in receipt of benefit since at least Nov 11.
Cl had mental health problems and rarely left the house.  Very paranoid and fearful of me talking to benefit agency on his behalf.
I realised it was probably during transition that benefit had been stopped and as cl told me he had not been out of house for a year I guessed it was due to him not attending the medical.
Even though I knew he had no grounds to make a new claim I completed the form with him and used every inch to describe his problems and with his permission adding my name and contact number.
Low and behold in March I received a telephone call from a decision maker who said she had read all my notes and referred case back to Aberdeen.  Income Support had been reinstated from Nov 11 and cl would be included in transition at a later date!!  The angel of a DM said it was obvious the cl was vunerable and had not understood the process.
So there was no appeal.
No claim for JSA.
Just an invalid claim for ESA -and an understanding DM who proved they can do anything if they want to.
Of course cl had not received any money for several months and was living on his mothers Pension Credit.  He is however now very happy with his large backpayment which was paid in early April.