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ESA appeal win superseding UC decision
We have had a client found fit for work on ESA who then claimed UC as a sick person. Whilst awaiting ESA tribunal she was assessed again on UC and found fit for work again.
She won ESA Tribunal and was put into SG. We assumed this would not have an impact on her UC Decision as she was found fit for work by UC, but they have superseded this decision with the ESA Tribunal Decision and she has been put in LCWA on UC.
Do ESA Tribunal decisions always have this impact as this is our 1st one in this situation as we are a recent UC area?
The ESA decision strictly only operates to:
(A) Get the balance of ESA paid up to the date of the UC claim
(B) Get the LCWRA element (or LCW element if it still exists) and conditionality consequences included on the claim from day 1 until overtaken by a later decision.
However a specific ground for any time revision applies which enables the UC WCA decision to be changed so as to reflect the the Tribunal’s decision on the previous claim - reg 11(2) of the 2013 D&A regs.
It seems like they have done that for your client (which is certainly good practice) but it doesn’t happen in every case so worth watching out for and requesting when appropriate.
I’ve previously seen DWP argue the similar rule in the legacy benefits D&A Regs only applied if the benefit at issue for both decision A (here the ESA decision) and decision B (the initial UC WCA decision) was the same (they argued that I think by reference to the bit about a “further claim by the claimant” clearly implying it was a claim for the same benefit.
Glad they no longer taking that approach.
I’ve previously seen DWP argue the similar rule in the legacy benefits D&A Regs only applied if the benefit at issue for both decision A (here the ESA decision) and decision B (the initial UC WCA decision) was the same (they argued that I think by reference to the bit about a “further claim by the claimant” clearly implying it was a claim for the same benefit.
Glad they no longer taking that approach.
Yes, although in fairness I am just trying to reconstruct what happened on the assumption that the decision maker understood what they were doing with reference to their own legal powers. Whether that is a fair assumption or not, I don’t know.