Wrongly migrated then found fit by UC
apologies if this sort of secnario has been answered elsewhere, I have a feeling I have seen something similar but I have trawled through some of the threads and can’t find it.
My client was claiming ESA wth 2x SDP for himself and his wife. He was found fit for work on 26/1/19. An MR was requested then later an appeal was made, which is ongoing.
However rather than claiming JSA or his wife claiming ESA, somehow they were able to claim UC on 11/2/19 although clearly he should have been prevented from this by the gateway closing on 16/1.
Later in about June 2019 was given another medical by UC and found fit again - not clear if an MR is ongoing (he thinks another orgnaisation may have requested one but this is not certain).
Can he return to ESA pending the appeal now, given that he should never have been able to claim UC in the first place, or will he be able to return to ESA in the event of a succesful appeal? Will the second failed medical affect this?
About the validity of the UC claim, DWP seem to believe that the claim for UC survives. See paragraph 7.51(e) here. This is arguably wrong. (A colleague who attended the CPAG conference in Manchester last week told me that this is CPAG’s position too.)
Even if the UC claim is held to survive, you should be able to terminate the UC award, and get an ESA award pending appeal in place, as this does not require a claim. Of course, any period covered by the claim for and award of UC will not be included in any fresh ESA award. The second medical shouldn’t affect any of this.
Health warning: it will likely be very difficult to persuade DWP to accept this.
Isn’t that guidance paragraph referring to cases where it is PIP that is subject to MR/appeal, or delayed?
In this case it was ESA that stopped, but PIP was still in place and so the SDP conditions were still met in “real time” when UC was (incorrectly) claimed less than a month later. Strip away the distraction of the second WCA and isn’t this exactly the kind of case that the specialist team is fixing - putting people back onto legacy benefits?
Subparas (a)-(d) cover such cases, but subpara (e) seems to refer to cases like this. I do agree with you though, the claimant should certainly be put back on legacy benefits.
Ah yes, I can see that now. Odd. There is this from Entitledto, which suggests they would be allowed to revert (although admittedly it isn’t an actual DWP web page so it might not reflect policy):
Interesting. Perhaps that is policy if the UC is not yet in payment.