Payment of ESA while appeal to the UT is pending

I have heard from a client whose ESA appeal was not upheld and now wants to ask for a SoR and perhaps go to the UT. Can he be paid Assessment rate ESA pending the SoR arriving and while he waits for the usual processes of requesting and having a UT hearing?

I am not so certain you can read off the rules for payment of ESA pending an appeal to the Upper Tribunal from the situation that pertained with payment of IS pending an appeal to the Commissioners against a negative PCA.

The reason for this lies in the different wording of the rules:

Para 24 of Sch 1B to the IS Regs said a person was in a group of people who could claim IS if they “had made and were pursuing an appeal”. The logic of the decision referred to in the above post was that someone appealing to the Commissioners was still to be regarded as “pursuing” such an appeal.

However, Reg 30 of the ESA Regs says that you continue to be treated as having LCW (and therefore entitled to ESA) only until “that appeal has not yet been determined by the First-tier Tribunal”. Furthermore, Reg 147A requires the Decision Maker to treat the claimant as not having LCW from the beginning of the first day of the benefit week after s/he is notified of the First-tier Tribunal result.

That said, given that I strongly suspect more than 6 months will have elapsed between the original decision the client was not entitled to ESA and now, the client can reclaim ESA once the Decision Maker makes the “treated as fit for work” decision referred to in preceding paragraph and provide med certs and will have to be treated as having LCW now (this will be fine so long as it is irESA you are after).

See also the DMG Memo: DMG Memo 26/2012 - http://www.dwp.gov.uk/docs/m-26-12.pdf

Martin