Reg 147A…

I’ve a client who failed WCA no points in March 2011. I successfully lodged a late appeal February 2012 and submitted she should be in SG. Claimant made a new claim for ESA in October 2011, did ESA50 herself and went to medical and has just been placed in WRAG. The award dates from the date of the new claim October 2011.

Reg 147 A (6) states ‘Where a claimant’s appeal is successful, subject to paragraph (7), any finding of fact or other determination embodied in or necessary to the decision of the First-tier Tribunal or on which the First-tier Tribunal’s decision is based shall be conclusive for the purposes of the decision of the Secretary of State, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity. ‘

Para (7) states ‘Paragraph (6) does not apply where, due to a change of circumstances after entitlement to which this regulation applies began, the Secretary of State is satisfied that it is no longer appropriate to rely on such finding or determination.’

Para (1) of 147A states ‘This regulation applies where a claimant has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work.’

After discussion with client she doesn’t want to risk failing the WCA on the recent WRAG award so not inclined to appeal that decision.

My reading of 147 A suggests that if the appeal of the March 11 decision is allowed and she is placed in the SG then that nullifies the subsequent WCA decision and claimant is entitled to the SG for the entire period until looked at again by a new WCA. However, should para 1 be given be given a more narrow reading i.e. it only applies to awards made because of pursuing an appeal?

I don’t think the fact she made a new claim in October 2011 should make the period between March 11 and October 11 a closed period but I’m not sure on this. Since entitlement following a lodged appeal is effectively a new claim anyway I’m not sure new claims make any difference if entitlement is continuous.

So am I right for now to simply leave the the recent WRAG result well alone for now? 

BTW I love doing late appeals :)