New Claim for ESA then winning appeal on old claim

I guess this is a common situation - client lost appeal on old claim, made new claim as more than 6 months since decision , meanwhile we applied for appeal on point of law against FtT decision on old claim. Has just had re-hearing and won.

My question is; does the old claim now superceed the new claim, or is it more like DLA where it would be a fixed period award?

Many thanks

Usually, the first appeal decision is limited to the date of the new decision on the second appeal (I think it’s “res judicata”).

However, we recently had a case where DWP superseded their own refusal on a later decision and simply started to pay the client ESA with full arrears, which was unusual but very welcome to see, as we’ve had a number of cases similar to yours and it becomes a real headache lodging appeal after appeal.

The decision on the new claim merely treats him as having LCFW but the tribunal’s decision means he actually has LCFW.  So, it should be a simple matter for the DWP to just supersede the decision on the new claim based on a change of circumstances.

Have a close read of the footnotes in Bonner et al to reg 147A ESA Regs - but an easy answer doesn’t leap out. It looks as if, subject to any change of circumstances since the date of the decision against which there was eventually a successful appeal, the successful appeal on the earlier decision rules - so that the later claim falls away. That would make sense as it would help prevent the SoS making later decisions that undermine the independence of tribunals; it would further the overriding objective by avoiding the unnecessary cost of further appeals where a tribunal had recently made a decision etc etc. The footnotes also refer to DMG Memo 26/12, which may shed more light, but I haven’t looked at it.

Thanks for responses. Just spoke to ESA as the suspense was killing me. They will action it when they get the decision of the Tribunal, which was only 2 days ago.

They confirmed the Tribunal decision on the old claim will have the effect of superseding the new claim. Client has filled out ESA50 on new claim due to a WCA referral, but this will now be withdrawn.

Just one thing, just to clarify my addled brain - does this only work if, say, she had not had a new medical on the new claim and failed? In that case she would have had a new, negative LCW determination so arrears on the old claim could only have been paid up to then? After that she would have to go through the appeal process again?

Have a good weekend all!

“...does this only work if, say, she had not had a new medical on the new claim and failed”?

Yes.