What benefit to claim whilst appealing termination of IB as a migration case?

Just seen someone who was on long term IB, then made subject to WCA as a migration. She failed WCA and was assisted by another oganisation to appeal. Client says the other oganisation did not make it clear to her what she could claim (apart from JSA, which she wont do) pending the appeal. I tried to contact the worker who is not in today.

I spoke to the appeals team at ESA who did not know the answer!

So…..can she claim IS at the reduced rate (I suspect not)?

Does she have to claim ESA pending the appeal ?- normally if someone is already on ESA and fails a WCA they do not have to actually claim provided they have put in an appeal - but how does this work on a migration case?

Many thanks!

Also, where are the Regs on this?

Your client should be entitled to ESA at the assessment rate while waiting for the appeal. There’s useful information in the advisers area of the dwp website http://www.dwp.gov.uk/adviser/

Thanks for that - so can Itake it she has no entitlement to IS pending the appeal?

Also. does she actually have to make a claim for ESA pending the appeal?

S/he doesn’t need to make a claim as far as I can see.

Para 50 of Sch 3 to SI 2010 No. 1907 provides for the modification of Reg 30 of ESA Regs so that claimant can be treated as LCW pending his/her appeal against the conversion decision - that is the provision which effectively allows a claimant who hands in med certs after failing to qualify for conversion to get ESA.

Para 58 of the same Schedule modifies Reg 3(j) of the Social Security (Claims and Payments) Regulations 1987 to the effect that no claim for ESA is needed in this situation.

Thanks Martin!