ESA and Upper Tier Tribunal

Hi all, I am looking for some advice and I’m hoping somebody can help me.

I have a client, who went through the IB-ESA conversion process in January 2012 and following her medical assessment, she was found to be fit for work. She appealed and the appeal was heard in May 2012, but the Tribunal upheld the Original decision. We requested a Statement of Reasons, identified an error of law, and appealed to the Upper Tier. The Upper Tier have agreed that there was an error of law and has remitted the case to be re-heard by the First Tier.

After the hearing in May, the client moved on to JSA for 6-8 weeks, ( as the tribunal was heard within 6 months of the original decision) but then made a new claim for ESA, and following that medical assessment, was placed in to the Support Group.

I am now concerned about the re-hearing of the original appeal, and the impact that will have on her current award. For example, If the appeal is heard and she is found to have Limited Capability for Work but not Limited Capability for Work Related Activity, will this supersede the current claim, causing a potential overpayment of benefit and a reduction in income??

My worry is that the DWP would argue that should she only have Limited Capability for work, then had that decision been made correctly the firs time then there would have been no need to make a new claim.

Any thoughts on whether it is still worth proceeding with the appeal??

I think the appeal is worth going ahead with as 1, there will be significant arrears I assume and 2, I cant see why the result of the appeal would change the current support group placement but I could be wrong on that.

The only reason I can think of where current award could be affected would be if the DWP look at the decision from the appeal hearing and supersede the new claim. If they go down the line of saying that had that decision been made correctly in May 2012, then there would have been no need for the new claim to be made, effectively making in null and void.

There would certainly be arrears should the new hearing be successful, but im more concerned about the effect on the new award.