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When did it become impossible to transfer to IRESA from CESA?
My client has been on CESA for many years. In March 2020 his carer’s claim for CA ceased and ESA were informed. Should the DWP have looked at his entitlement to the SDP so he could receive IRESA?
He has a pension which previously prevented him from claiming IRESA due to there being no SDP in his award and when the CA claim ended the notes state that as he is on CESA he is not entitled to SDP.
There’s no definitive answer. He is either on ‘old-style’ ESA which can include either or both of cESA and irESA or he is on ‘new-style’ ESA which is only ever cESA.
If he is on ‘old-style’ ESA then the award can still be superseded to include irESA. If he is on ‘new-style’ ESA then it can’t.
The main reason why he would be on new-style rather than old-style is if the claim was made after the introduction of UC to the postcode area where he was living or if something has otherwise dragged him into the new system.
There is some further detail here https://askcpag.org.uk/content/207210/old-style-esa-who-can-get-it
Hi - we’ve received a query from an adviser on this matter. Her client claims old-style cESA and they completed a form to have the sdp added. The client has had a DWP letter stating that a new claim for ESA cannot be made and the claimant should claim UC. Her attempts to get the matter resolved informally (ie on the grounds that it’s a supersession not new claim) have been unsuccessful and she’s been advised over the phone that it’s not possible. She’s going to take further action.
Is anyone else coming across this - when I saw this post I wondered if there had been a change in the DWP approach and an intention to challenge the application of LH v SSWP (ESA) [2014] UKUT 480 (AAC) reported as [2015] AACR 14.
LH is settled law
I would go for MR and appeal
Ah - “LH is settled law”. Thanks.
No decision so cannot MR - but the adviser is using escalation route to get this resolved or will complain.
It seems to me that this is either an unnoticed supersession at the same rate or an unnotified refusal to supersede. Either way the decision is appealable
The time clock pertaining to the time limits for any appeal has therefore not even started.
Since the DWP did not say that an MR is needed before there can be any right of appeal, the MR is simply not needed and you can go straight to appeal
For the effect of unnotified or inchoate decisions see REGINA− v −SECRETARY OF STATE FOR THE HOME DEPARTMENT AND ANOTHER EX PARTE ANUFRIJEVA (FC) [2003] UKHL 36 and the Northern Ireland decision C10/07-08(IS).
[ Edited: 31 May 2023 at 02:55 pm by Stainsby ]Ah - “LH is settled law”. Thanks.
No decision so cannot MR - but the adviser is using escalation route to get this resolved or will complain.
Your earlier post said that the client had had a letter from DWP saying (wrongly) that what she wants is not possible. For my money that’s a decision and so can be appealed. If the letter doesn’t say anything about MR you should be able to bypass MR and go straight to the tribunal - see PP v SSWP (UC) [2020] UKUT 109 (AAC). But hopefully escalation may solve the problem quicker.
For my money that’s a decision and so can be appealed.
which would be looked upon symathetically by the judiciary up here. Put it on a paper sscs1 rather than the electronic form though. Last time I did one of these (when a case manager had simply said “no” in an email) the online form wouldn’t let me appeal.
The appeal was admitted and succeeded.
For my money that’s a decision and so can be appealed.
which would be looked upon symathetically by the judiciary up here. Put it on a paper sscs1 rather than the electronic form though. Last time I did one of these (when a case manager had simply said “no” in an email) the online form wouldn’t let me appeal.
The appeal was admitted and succeeded.
I think that might have changed. I’ve just submitted an appeal where there was no decision letter at all, and therefore no MRN, and the online form did not stop me. I haven’t had the usual confirmation and reference number yet, but that may be because such cases have to go to a judge first.
I haven’t had much trouble with the online form even when there is no MR notice
I have just gone on to explain why there was no MR