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Reopening of IRESA pending appeal (with an unsuccessful UC claim in the interim) - How?????

JPCHC
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I’d been working on the understanding that IRESA is abolished if someone makes a UC claim, irrespective of whether it is awarded.  But, I’m now doubting myself having seen an IRESA claim reopened (and paid!) following a UC claim which was disallowed on right to reside.  I did tell the client I was absolutely baffled about how they’d done it but since it worked in her favour we’re not asking anything!

Is it just that they DWP are making mistakes when they reopen the IRESA claim, or have I just completely misunderstood everything?

This has got me thinking about another case where I didn’t challenge the decision ending the IRESA claim as they’d since claimed UC.  I’m now tempted to put in a late WCA appeal in the hope someone might magically reopen the IRESA claim, and HB will reopen based on receipt of the passported benefit.

The client is a (vulnerable) EEA national about to lose his flat and the chances of success for the UC appeal (right to reside) are slim at best.  I can’t challenge the HB stop notice because he doesn’t seem to have a qualifying right to reside.

Thank you in advance

Charles
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JPCHC - 16 April 2019 08:00 PM

I’d been working on the understanding that IRESA is abolished if someone makes a UC claim, irrespective of whether it is awarded.  But, I’m now doubting myself having seen an IRESA claim reopened (and paid!) following a UC claim which was disallowed on right to reside.  I did tell the client I was absolutely baffled about how they’d done it but since it worked in her favour we’re not asking anything!

Is it just that they DWP are making mistakes when they reopen the IRESA claim, or have I just completely misunderstood everything?

An award made pending appeal is a fresh award, and not a continuation of the old award. Claiming UC only abolishes ESA for the period of the claim/award. So, a subsequent award of ESA can theoretically be made.

This is what I wrote in a different thread last week:

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.

However, looking again at Art 4(9)-(10) of the No. 9 Commencement Order, I now believe that an award made pending appeal will not be terminated by the UC claim even if the award started prior to the UC claim. (Of course, this is only if the award pending appeal was made after the UC claim was decided and refused.)

JPCHC - 16 April 2019 08:00 PM

This has got me thinking about another case where I didn’t challenge the decision ending the IRESA claim as they’d since claimed UC.  I’m now tempted to put in a late WCA appeal in the hope someone might magically reopen the IRESA claim, and HB will reopen based on receipt of the passported benefit.

Although ESA may be awarded, this would not allow HB to restart, as passporting does not remove the need for a claim for HB, which cannot now be made.

JPCHC - 16 April 2019 08:00 PM

I can’t challenge the HB stop notice because he doesn’t seem to have a qualifying right to reside.

Unless I’m misunderstanding you, not having a right to reside is definitely a reason to challenge the HB stop notice, as that can only be made once the SoS is satisfied the claimant has a right to reside.

[ Edited: 17 Apr 2019 at 03:34 am by Charles ]
tbidmead
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My head hurts…

Charles - 16 April 2019 08:20 PM

Claiming UC only abolishes ESA for the period of the claim/award. So, a subsequent award of ESA can theoretically be made.

I am really struggling with this bit… I read Art 4(9)-(10) of Commencement Order No. 9 as abolishing irESA/ibJSA on the date of claim/first day of award, even when irESA/ibJSA awarded retrospectively on revision/appeal. What am I missing?

Daphne
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I think it’s if the UC award isn’t made - eg no R2R - then subsequently the ESA claim can be reinstated pending appeal (so long as this is after UC claim has been refused) as no new claim needed and as no UC award then it’s no longer abolished - but correct me if I’m wrong!

Charles
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I originally thought as well that art. 4(9) would apply to any JSA/ESA award awarded retrospectively. That was why I suggested ensuring that the award pending appeal should only start after the UC claim.

Looking at it again though, Art. 4(10) specifies the types of retrospective awards included in that provision, and an award pending appeal is not one of them.

tbidmead
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I should note that I have been looking at this because of a similar but quite different case I have where:

ibJSA was claimed by an EEA national and paid for 91 days
UC then claimed but refused following HRT

Revisions requested of both decisions, JSA revised but UC did not.

I had only expected JSA to pay up to the date of UC claim but they have paid to date. I am similarly baffled so any clarification appreciated!

Charles
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I agree, in your case it should have terminated at the date of the UC claim.

I’m not suprised they’ve done it wrong though!

tbidmead
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Charles - 18 April 2019 03:16 PM

I originally thought as well that art. 4(9) would apply to any JSA/ESA award awarded retrospectively. That was why I suggested ensuring that the award pending appeal should only start after the UC claim.

Looking at it again though, Art. 4(10) specifies the types of retrospective awards included in that provision, and an award pending appeal is not one of them.

I see what you mean…

I am still confused by the suggestion that “Claiming UC only abolishes ESA for the period of the claim/award”.

Surely once irESA is abolished - it is abolished, whether it was an existing entitlement to that point or an award that could otherwise take place at a later date e.g. pending appeal.

Charles
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It is only abolished in relation to certain claims and awards of various benefits, not completely.

I think the only legacy benefit abolished completely so far for anyone is tax credits for pensioners.

tbidmead
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Of course but does Commencement order 9 art (4) not serve to entirely abolish irESA & ibJSA - just on an individual claimant basis?

Charles
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No, it’s only in relation to particular claims and awards made by a person. See in para. (1): “in relation to the case of a claim ... and any award that is made in respect of such a claim”.

In fact, that is why para. (9) is at all necessary. If you would have been correct, irESA would already have been abolished completely by the making of the claim for UC.