Failed IB-ESA & new claim

Customer failed IB-ESA transfer claim stopped 13/1/14 MR decision no change in original decision.
Customer made new claim to ESA 14/1/14 being paid currently at assessment phase.

My initial reaction is that any appeal would be fruitless as the new claim will effectively take over any tribunal decision.

Then I thought if new claim fails after assessment then the tribunal decision if favourable on first case will come into effect.

Oh dear am i thinking straight or not

Have they appealed against the conversion decision?

Or was it a new claim on the basis of a different condition or deterioration?

The consensus regarding new claims is that once the assessment is conducted on the new claim then a First tier Tribunal’s decision is limited due to res judicata however it might be that they are paying her on the basis she’s appealed and is providing sick notes sorry, fit notes. If that’s the case the assessment on the new claim, if there is to be one, might be many months away.

Her new claim would be caught by the 6 months’ rule unless she has either a new or significantly worsened condition or she is appealing against the WCA conversion decision.  The 6 months’ rule would otherwise prevent payment on the new claim.  So the fact she is being paid on it is odd because she’s unlikely to have worsened or acquired a new condition in the short time period between the effective date of conversion (13 Jan) and the date of claim of her new award.  Nor, clearly, has she appealed the conversion decision yet. 

In any event, I’d appeal the conversion decision now that you’ve received the MR notice.  The fact you’re appealing will then provide the current ESA award (award 2) with a shield against the 6 months’ rule and also offer it further protection in the form of Reg 147A ESA Regs.  Provided there has been no worsening/new condition, Reg 147A prevents a new WCA being carried out on award 2 until the tribunal decides the conversion appeal (award 1).  Should that appeal be successful, the law provides that award 2 be revised so that payment of ESA continues under award 1 - see Reg 3(5E) Decisions and Appeals Regs:

“3(5E) A decision under section 8 or 10 awarding an employment and support
allowance may be revised if–

(a) the decision of the Secretary of State awarding an employment and support
allowance was made on the basis that the claimant had made and was pursuing
an appeal against a decision of the Secretary of State that the claimant did
not have limited capability for work (“the original decision”);

and

(b) the appeal to the First-tier Tribunal in relation to the original decision is
successful.”

However, in your case sub para (a) of 3(5E) above does not appear to apply because award 2 was made before your client appealed.  The safest bet may, therefore, be to appeal award 2 and have both it and the conversion appeal heard together.

Edit: Are you sure the 13 Jan date is not simply the date of the conversion decision rather than its effective date.  The latter can be upto 4 weeks later than the former.  If the date of decision was 13 Jan its effective date could be some time in Feb.  So if she made a new ESA claim on 14 Jan and received payment she could wrongly think that such payment was ESA when, in reality, it would still be her final payments of IB (which wouldn’t end until Feb).  The mandatory recon could also have taken place in the period between date of conversion decision and its effective date.  If this scenario’s correct then I’d expect her payment of IB to have stopped by now.  Is she sure her payments have continued through March?

The award for ESA is only currently on assessment phase so this would not be classed as a decision would it so the regs will apply I just need them to not apply LCW assessment prior to the appeal being heard.

Gail Knight - 26 March 2014 05:04 PM

The award for ESA is only currently on assessment phase so this would not be classed as a decision would it so the regs will apply I just need them to not apply LCW assessment prior to the appeal being heard.

You’ve lost me.  If ESA’s being paid at assessment rate then a decision has been made.

In your first post the client hadn’t appealed yet, so I suggested in my response that she do so.  That would stop a LCW assessment prior to the appeal.  You seem to be asking that question again (“I just need them not to apply LCW assessment prior to the appeal being heard”).

ok