ESA when under appeal

Client made a claim for ESA in the summer of 2014 and in early 2015 failed the WCA. He asked for a mandatory
recon but while this was going on he made another claim for ESA.

As this was within six months of the previous WCA the DWP seem to have used the original ESA medical and he failed the WCA again. It is not at all clear that there had been any worsening of his condition or a new condition.

A week or so after this the MR decision on the first claim came back, decision unchanged so he is going to appeal.

The question now is whether he can go back to ESA pending the hearing of the first ESA decision?

In my view the second claim should be taken as a supersession rather than a new claim as it was made while the original claim was under MR and therefore had not been finally determined and because of this was still ‘live’.

If my interpretation is correct then there is in fact only one claim and as soon as that decision is under appeal the claimant should be able to return to ESA again.

I must confess that I have not been able to find anything to either support or deny this view in the legislation and i wondered if anyone had come across this before or knows what legislation might apply.

thanks

I think he can, but not following your rationale.

The first claim no longer subsisted as soon as an initial decision was made to award ESA in the first place. That award was ended by a decision that he did not have limited capability for work. He has sought an MR of that decision and that has had an outcome, not to revise the original decision. If he appeals, then he can be entitled to and awarded ESA without the need for a claim. Sitting at home without reference books, etc, I think that the period from the date the 2nd claim was made, up to the date of disallowance of the second claim, MAY be excluded as entitlement for that period has already been decided.

If the appeal is successful, the original decision to stop entitlement to ESA will be revised, and the decision on the second claim would probably fall to be revised as well