WCA failures in full service areas
I’m being lazy and not searching.
ESA claimant in a full service area is found fit for work.
Is the new claim for ESA that arises when they make the appeal excluded in a full service area?
I’ll bet it is but I need to make sure.
I might have answered my own question but it’s worth throwing it out to the field…
Reg 4 of commencement order 23 extinguishes ESA where a new claim is made, however reg 3(j) SS(Claims and Payments) regs doesn’t require a claim for ESA for an award to be made during the appeal so theoretically a new award of ESA can go back into payment on appeal against the WCA decision.
I’m doubting myself; it seems to go against the policy intention behind the lobster pot.
For context… I’ve got a new claimant to either IS or ESA that is risking being found fit for work once we go Full Service in December; they’ve got some pretty decent earnings which might incentivise an ESA claim (therapeutic work) however with the shadow of UC hanging over us if they’re compelled to claim UC should the ESA claimant be found fit, which is a distinct possibility in their circumstances, then any benefit from the Exempt Earnings evaporates and they’d have been better off on IS.[ Edited: 2 Aug 2017 at 12:20 pm by Dan Manville ]
As long as they can hold out during the MR period, then they can claim ESA assessment rate pending appeal outcome. I’ve generally just bunged in a quick MR request in order to expedite a decision in order to proceed to appeal stage as quickly as possible.
What Alice says. Even once you are full service it’s possible to avoid UC if it’s not a new claim - and ESA pending appeal isn’t a new claim.
I suppose what you hope for is that the appeal gets heard before December so that there’s just time to claim IS if it’s not successful…?
But if that sounds optimistic, it may be worth considering switching to IS nearer the time anyway? Otherwise, if WCA appeal unsuccessful AND you are full service, it’s UC. Tricky tactically.
and drafting an advice letter with this added layer of complexity is a royal PITA; at least the client is pretty intelligent. The next few months will be a nightmare!
Fortunately,I’ve not had problems in getting ESA put back into pay pending appeal in full service area after failed WCA when no claim for UC has been made but I’ve only had cases thus far where claimant was already on ESA prior to failed WCA. I’ve just picked up a case of a very late IB/IS straggler being transferred to ESA and failing the WCA. Question is, can they try and avoid UC during MR period and get the ESA pending appeal in the same way? Any thoughts?
Yes - as long as he doesn’t claim UC whilst waiting for the MR notice, he could then get back on ESA pending appeal. I’m assuming you’re full service, so if he does claim UC, he abolishes irESA for himself and then it is not possible.
The problem is not knowing how long the MR will take and therefore how long he has to go without claiming.
OTOH he has to go 6 weeks without money anyway because that’s the minimum length of time the first UC payment will take to arrive. Waiting for ESA pending appeal (backdated with fit notes) may be no longer and if they whip back the MRN could be less.
Unless claimant applies for UC immediately they have a gap between their claim and the WCA decision. With the ESA pending appeal they avoid that—even if they lose at FTT they can claim UC immmediately and have no gap.