Re-instating ‘old style’ ESAc whilst appealing being found fit for work, after claiming UC in the meantime

Has anyone had any dealings with this scenario and if so what was the outcome?

I have a case where:

‘Old style’ ESAc was in payment from December 2017.
She was found fit for work fowling a WCA in August 2018 (first failure).
She claimed UC October 2018 (we went full service October 2018).
Husband works full time and no UC has ever been paid (correctly).

She subsequently requested (in February 2019) ESAc be re-instated from August 18 - December 2018.
This has been refused repeatedly, including after my involvement with the local liaison officer who dealt directly (I presume) with ESA processing, on the basis their guidance states this isn’t allowed. No guidance (as it was apparently an internal link the liaison officer was directed to) or regulations on which this is based has been provided in the response.

I’d be grateful for people’s thoughts/experience on this.

Cheers

Hi - are you requesting a late MR of the August decision? In which case they have to give a decision even if it is to refuse to allow the late MR. And if they do that you have a right to appeal - [2018] AACR 5

And that is the case regardless of whether a UC claim was paid or made - contributory ESA is outside UC

I assume, from the thread title, that an appeal was being pursued between August and December 2018?

Cheers for the responses.

No the MR/appeal were both made in time it’s just that she didn’t seek advice until recently (when I saw her to help prepare her WCA case for Tribunal) and she was unaware of the general principle that ESA could be reinstated whilst appealing so never asked.
This request for reinstatement was subsequently made in Feb 19 and given the 365 day rule it is for a closed period from August - December 18.

NB: reading between the lines in the response they appear to be saying that the issue is not ESAc per say but the fact it is ‘old style’ rather than ‘new style’.  I’m at a loss as to how they have come to this conclusion, but nothing surprises me anymore!

I’m pretty sure old-style and new-style are just terms of convenience to describe the abolition of income-related ESA, rather than separate benefits. These things seem to have a habit of becoming inflated above their status by officials.

Mr Finch - 26 February 2019 12:33 PM

I’m pretty sure old-style and new-style are just terms of convenience to describe the abolition of income-related ESA, rather than separate benefits. These things seem to have a habit of becoming inflated above their status by officials.

Isn’t ‘old style’ ESA onebenefit comprising both a contribution based element and an income based element. ‘New style’ ESA is a purely contribution based benefit. I think therefore that ‘new-style’ and ‘old style’ are separate. ‘New style’ refers to ESA established by the ESA Regulations 2013 which do have different rules about conditionality and sanctions as well as doing away with the income based elements.

Technically, when the claim for UC was made, that would automatically convert the (potential) retrospective ESA(c) award to an ESA(NS) award. This conversion happens by the making of a UC claim, so it wouldn’t matter that income was too high for a UC award to actually be made.

This being the case, ESA Regs 2013 r87(1) would not seem to apply (note the wording there “under these regulations”). This may have led a DM to think no ESA should be awarded at least from the date of the UC claim.

However, the No. 9 Commencement Order, Art. 10(2)(h) explicitly provides for an appeal against an old-style LCW determination to count as well for this rule. So, if that was the reasoning behind your decision, it is wrong!

For reference, this is mentioned in the ADM V8139.