I.B. to E.S.A. Migrant loses entitlement but wins appeal. Why no Transitional Addition in backpay and ongoing entitlement?                   

I have a client who was on I.B. Long Term, Age Addition Under 35. Upon migration lost entitlement (the obligatory 0 points!). Her appeal took place over a year later so she went from (c)esa to (i)esa during her wait. She won her appeal and was placed in the WRA Group. her backdating only included the difference between ESA basic (pending appeal) and ESA WRAG. Her ongoing entitlement if she had received the Transitional Addition would have been a further £11.90p per week. I have been representing at Employment Tribunals for so many years I have learnt not to confuse the law and justice but it seems more than a little unfair that I.B. claimants who would have enjoyed T.A. if they had got through their medicals cannot (it appears) get it reinstated after a successful appeal.

I can see the complexity of conversion legislation and change of circs caused by the 365 days rule. But can anybody give me a simple answer, minus the legalese, that I can convey to my client as to why she can’t get the T.A. backdated and in her ongoing entitlement? It seems so scandalous, has no legal challenge ever been mounted? Or am I wrong and she should get it?

The short answer is that she should get the TA backdated for one year.  The TA is classed as contributory ESA which is, therefore, time limited after 365 days in the same way as the substantive contributory ESA.

It’s arguable that she should have remained on CESA whilst waiting for her appeal tribunal, rather than transferring to income-related ESA at the 12 months’ point.  If that’s right (I’ve been waiting for a case to test the argument out on but not had a client who’s waited longer than a year to get to tribunal) then she should arguably also have continued to get the TA until the tribunal hearing.  If she wanted to pursue that she’d have to late appeal the decision transferring from CESA to IRESA.

Edit: sorry, just checked the regs - seems her TA would still stop after 12 months even if her substantive contributory ESA continued until the tribunal hearing.  So it’s not going to benefit her appealing.  But for anyone else who has been waiting 12 months for a tribunal to hear their conversion appeal and who doesn’t have IRESA as an option to fall back on at that point, it’s definitely worth appealing the time limiting of the CESA pending appeal.

For anyone interested the argument is as follows.

Section 1A WRA 2007 as substituted by the ESA Existing Award No.2 Regs provides:

“1A.—(1) The period for which a person is entitled to a contributory allowance
shall not exceed, in the aggregate, the relevant maximum number of days in any
period for which his entitlement is established by virtue of the Employment and
Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)
(Existing Awards) (No. 2) Regulations 2010.

(2) In subsection (1) the “relevant maximum number of days” is-
(a) 365 days, or
(b) na

(3) The fact that a person’s entitlement to a contributory allowance has ceased as a
result of subsection (1) does not prevent his being entitled to a further allowance if he
satisfies the first and second conditions set out in Part 1 of Schedule 1” (my emphasis).

So your award of CESA pending appeal stops after 365 days.  However, you are still appealing the conversion decision.  Consequently, Reg 3(k)(i) Claims and Payments Regs (again, as substituted) still applies to you, waiving the need for you to make a new ESA claim.  That’s important because if you satisfied section 1A(3) above you’d re-qualify for CESA immediately from day 366.  The DM who, rightly, time limits your old CESA can do so no earlier than day 366.  The DM should, therefore, be checking whether you qualify for CESA again at the same time as time limiting your old award (we know he doesn’t do this, of course, but it’s irrelevant because as long as it’s something that, legally, he should be doing then a tribunal standing in his shoes can do it).  And he wouldn’t have to look very far for a new basis for awarding CESA from day 366.

Reg 147A(1A) ESA Regs (as substituted) provides:

“(1A) 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) ” (my emphasis).

In other words, Reg 147A(1A) allows you to satisfy section 1A(3) above from day 366. 

Section 147A applies for as long as you “have made and [are] pursuing an appeal against a conversion decision which embodies a determination that [you do] not have limited capability for work” - para (1).

So you should continue to qualify for CESA until the tribunal hears your conversion appeal. 

If you’re kicked off ESA at 12 months whilst still waiting for a tribunal, I’d appeal that decision and ask a tribunal standing in the DMs shoes at day 366 to award you CESA afresh from day 366.

Note: This argument only applies to conversion cases.

Well done on winning your first tribunal.

Yes, I think a late appeal of the time limiting decision is an option. 

He, of course, continues to have limited capability for work (unless he claimed JSA after 18/10/13) despite his substantive ESA having ended in Oct 2013.  That continued LCW would give him the chance at some future point, say if his condition worsened, to re-apply for ESA and, provided he got into the support group, to be awarded contributory ESA - see section 1B WRA 2007. 

It’s also arguable that a late appeal is not needed in these circs.  That’s because Reg 3(5E) Decisions and Appeal Regs provides that his award of ESA pending appeal which commenced on 18/10/12 should be revised following his successful LCW appeal, here the conversion decision appeal.  As a result, it’s arguable that the new award as revised has to be superseded again with effect from 18/10/13 in order to keep the record accurate.
But it’s probably wise to make the late appeal as any delay could mean it’s not admitted.

Edit: I’ve amended this post because I had said that there was a risk that a new tribunal could find that he did not have LCW from 18/10/13 thereby jeopardising his future chances of being awarding CESA under section 1B WRA 2007.  However, that is not correct. The risk wouldn’t apply in the present case as a tribunal standing in the time- limiting DM’s shoes in Oct 2013 could not make a new LCW decision because Reg 147A(2) prevents them doing so.  And, Reg 147A was amended for conversion clients to make the outcome of the conversion appeal, in effect, conclusive for the question of LCW for any ESA pending appeal (ie, para (7) of Reg 147A for normal ESA appeals was not re-produced in the version of Reg 147A that applied to conversion cases).