Defective UC claims and disabled full-time students
Combining defective claims with disabled full-time students for added confusion…
Clt gets PIP and appealing WCA decision on ESA. He applied for UC and was turned down on grounds that he’s a full-time student. Clt would rather stay off UC, so will ask for ESA pending appeal (arguing that UC claim defective) rather than challenging UC refusal.
If clt wins ESA appeal then would this retroactively validate the UC claim and abolish ESA?
I think you will find it difficult to argue the claim was defective. Just because a student is not eligible for UC doesn’t make the claim defective. In fact DWP claim it is virtually impossible with the computer system to make a defective claim. They further claim that even a defective claim would still terminate an ESA(IR) award. See here.
An ESA award pending appeal does not require a claim, and can be made despite full-service UC. However, if the award starts prior to the date UC was claimed, it will terminate on the date the UC claim was made (although arguably a fresh award could then be made starting immediately). You may therefore prefer the new ESA award to start on or after the day the claim for UC was made. See Art 4(9) of the No. 9 Commencement Order.
Normally an ESA award pending appeal would start from the day after the previous entitlement ended, but if you wanted it to start later than that (e.g. after the date the claim for UC was made), you could try and ensure the medical evidence submitted only starts at a later date.
Coming to what will happen if the appeal is successful: I think it is implicit in Reg 147A(6) of the ESA Regs 2007 that the award made pending the appeal is still a separate award, and does not revert to being a continuation of the old award. That being the case, any ESA award made pending an appeal which began after the UC claim would not be retroactively abolished if and when the appeal is won.[ Edited: 12 Apr 2019 at 06:45 am by Charles ]
sort of linked…but has anyone had a uc claim for a ft student rejected as no lcwf…establish lcfw via credits only claim…then went back and had uc refusal overturned?