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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Backdating adding irESA to cbESA

CAAdviser
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Central and South Sussex Citizens Advice

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Joined: 12 December 2017

Assuming as this is a COC, then it’s possible to get up to 1 month backdating?  Is this correct?

Andyp5 Citizens Advice Bridport & District
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Citizens Advice Bridport & District

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https://assets.publishing.service.gov.uk/media/5ae2d53ced915d42f7c6bac2/CE_3532_2017-00.pdf

O.L. v SSWP (ESA) [2018] UKUT 135 (AAC).

See link above and bad copy and paste from a sub below i.e. may be backdated further than one month. Been covered a lot on Rightsnet but couldn’t find any links.

‘The District Tribunal Judge subsequently gave permission to appeal to the

Upper Tribunal in the light of the detailed arguments advanced by Mr Simon

Howells, the Appellant’s representative. He explained that:

“e. Rather I accept the submission of the Appellant’s representative that it is

arguable that the Appellant’s circumstances fell within reg.6(2)(e) of the regulations:

he had entitlement to a ‘relevant benefit’ (ESA) from 18/09/13 (Reg.6(2)(e)(i)), and

subsequently was given entitlement to another relevant benefit (PIP) from 24/10/13

(reg.6(2)(e)(ii)). It followed that the date the supersession took effect was from the

date on which entitlement to PIP arose (reg.7(7)(a)).

f. Whilst arguably the Appellant’s circumstances fell within both reg.6(2)(a) and

6(2)(e), more likely the latter is to be preferred as dealing more specifically and

narrowly with the Appellant’s case (paragraph 8).”

8. Judge Wikeley held in O.L. v SSWP (ESA) [2018] UKUT 135 (AAC). ‘I agree with

both representatives that the Tribunal went wrong in law and so I allow the appeal

and set aside the Tribunal’s decision. The Tribunal fell into the trap of thinking that

supersessions of benefit decisions under regulation 6 were confined to cases

where there had been a change of circumstances in general terms. But regulation

6(2) provides for a number of more specific situations’ (paragraph 13).

‘There is no point in sending this case back for re-hearing as the facts are not in

dispute. I therefore re-make the Tribunal’s decision under appeal. The Secretary of

State’s ESA decision of 5 November 2013 should have been superseded under

regulation 6(2)(e) of the 1999 Regulations. This was because that decision

awarded the Appellant a relevant benefit (ESA) from 18 September 2013 so

satisfying regulation 6(2)(e)(i). Further, the Appellant was awarded another relevant

benefit (PIP) from 24 October 2013, i.e. from a date “subsequent to the first day of

the period to which that entitlement relates” within the terms of regulation 6(2)(e)(ii)’

(paragraph 14).