ESA arrears blocked by claim to IS

Client has an Employment and Support Allowance appeal against decision dated 28-08-12. On 17-11-12 client claims Income Support as she has been awarded Carers Allowance.

Employment and Support Allowance appeal allowed on 18-08-13 and arrears paid but only for period 28-08-12 to 16-11-12 client is told that due to claim Income Support that they cannot pay further.

My understanding of this was that as the initial Employment and Support Allowance decision has now been revised, so she could never claim Income Support if it had been timely, means that Income Support claim should be withdrawn? Client should then be paid Employment and Support Allowance to date with the carers premium less any Income Support paid?

Anyone have any ideas if my position is correct or not?

Regulation 3(7) and (8) of The Social Security and Child Support (Decisions and Appeals) Regulations 1999, appears to be the answer?

It’s not 3(7) or (8) but 3(5G):

“(5G) Where–

(a) a person’s entitlement to an employment and support allowance is terminated
because of a decision which embodies a determination that the person does
not have limited capability for work;

(b) the person appeals that decision to the First-tier Tribunal;

(c) before or after that decision is appealed by the person, that person claims and
there is a decision to award–

(i) income support, or

(ii) jobseeker’s allowance; and

(d) the decision referred to in sub-paragraph (a) is successfully appealed,

the decision to award income support or jobseeker’s allowance may be revised.”

If you tried to use 3(7) to revise the IS the DWP would defeat it by contending, rightly, that the ESA was not awarded for a period which included the date the IS was awarded because the ESA ran out the day before.

Thanks, Tom.