Start date of Support group

Hopefully straightforward query.  My cl has been getting IR-ESA WRAG for 2 yrs.  In Dec 12 cl received an ESA50 which she submitted in Jan 13, had a medical in June and finally got a decision to put her into Support group at end Aug, which is excellent news.  However the Support component has not been backdated.  As the decision took so long my cl has clearly missed out.  Are there any grounds to appeal the date of award?

Under Regs 19(7) & (8) and 34(4) & (5) ESA Regs a DM may re-assess LCW and LCWRA.  As you may know, the trigger for such re-assessment can be as small as the passing of 3 months since the last determination. 

The resulting supersession from WRAG to SG could be made under either Decision and Appeals Reg 6(2)(r)(i) [receipt of the June medical report from the HCP] or 6(2)(a)(i) [change of circs].

A supersession made under para (2)(r) can be effective from an earlier date than the date on which it is actually made (see Reg 7(38), (39) & (40) D&A).  On the present facts, the completion by the client of the ESA50 could be construed for the purposes of 7(39) as “an application by the claimant” in which case the supersession would be effective from the date Atos received her ESA50.  And arrears of the difference between SC and WRAC together with arrears of the EDP should be payable from that date.

Alternatively, if the DWP argue that it was they who initiated the re-assessment by issuing the ESA50, the determination that she now has LCWRA (SG) is a change of circs for the purposes of Reg 6(2)(a)(i) above and because it is a change that’s advantageous to the claimant it’s effective from “the beginning of the benefit week in which the Secretary of State commenced action with a view to supersession” - Reg 7(2)(bb) D&A.  In other words, the beginning of the week the DM issued the ESA50.  Caselaw has it that where there are two equally applicable grounds for supersession the one that should prevail is the one that’s most beneficial to the claimant.  Here, I’d say that was the latter, ie the week the ESA50 was issued is obviously earlier than the date it was returned.

You may have limited success with this, but if she has been put into the Support Group with no material change in her condition you could always try putting in a GL24 to be backdated right to the beginning of her ESA claim, putting the fact that the client was unaware of the existence of two separate groups (WRAC and SG) and the differences between them (the DWP letters are inadequate in this regard) as a reason for the lateness of the appeal.

Just a thought.