ESA entitlement pending appeal against IB conversion decision

If an IB claimant fails their WCA on a migration to ESA assessment, is the ESA they might claim pending an appeal contributory or income -related? If it’s the former can someone supply me with a reference from the regs.

Thanks

had a discussion about this this morning.

CPAG book seems to suggest they get ESA pending appeal in the usual way so i am taking that to mean they will get conts based as coming from a conts based benefit.  not 100% if that is correct though.

“What if the WCA is failed?

The claimant will not be entitled to ESA, and their existing award of IB/SDA/IS will terminate.

If a claimant would remain entitled to IS on a ground other than disability, eg as a lone parent, they will remain on IS on that ground if they wish to. However, the IS will not include a disability premium for incapacity for work and any IB/SDA will terminate.  They will be able to appeal against the conversion decision saying that they have failed the WCA (or ask the DWP to revise it) under the usual rules.

Claimants should be aware though that the time limit runs from the date of the conversion decision, not the date their existing award is terminated, which will not be until two-four weeks later.

If they appeal against an actual failure of the ESA, they will be able to get ESA pending the appeal in the usual way (ie, at the assessment phase rate only). If they had an existing award of IB or SDA, they will be able to get contributory ESA pending the appeal without having to satisfy the national insurance contribution conditions. Alternatively they may claim JSA pending the appeal (ie, if they can satisfy the jobseeking conditions).

If a claimant has been refused ESA because of failing to return the questionnaire or attend the medical, again they may appeal about that, but usually (unless their condition has significantly worsened or is new) there will be no automatic entitlement to ESA pending the appeal.” 

Quoted from CPAG factsheet available @:
http://www.cpag.org.uk/welfarereform/incapacity_esa_transfer_factsheet.htm

Sorry no time to look into regs right now but it should be within the ESA (Transitional Provisions, HB and CTB) (Existing Awards) (No2) Regulations 2011 .... hope this helps ;)

Its in sched 2 para 15 which bungs a special reg 147A in the ESA Regs for claimants appealing conversion decisions. Para 1A of this special reg 147A says ” A person to whom this regulation applies who has made and is pursuing an appeal against a conversion decision in respect of an existing award of incapacity benefit or severe disablement allowance shall be treated as having satisfied the conditions in Part 1 of Schedule 1 to the Act (contributory allowance:conditions relating to national insurance)”

Does this mean that someone may only have a couple of days to appeal?

Has anyone seen these letters - is it easy for the client to undertsand the date of decison they are appealing?

As it happens, I have one of thse decisions in front of me now. It’s dated 1 Nov and says that they have decided that he is not entitled to ESA from 15 Nov. So, he has been prewarned of his money ending.

I guess the problem will be when you’re dealing with clients who only react when their money ends…

Hi HFCAB generalist adviser, if you stil want to see a conversion refusal decision, I have one from one of my clients (I am one of your colleagues (Outreach)