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CB v IR ESA (again)
Can’t quite get my head around this scenario and would be grateful for opinions.
Client had an award of CB ESA. No IR ESA entitlement at that time due to capital. Failed WCA shortly before CB ESA would have otherwise expired. Lived on capital/DLA. Very late MR eventually lodged, decision not revised, appeal lodged and due to be heard soon. (now close on two years since WCA failure). Client’s savings have dwindled (and fell below 16k probably around a year ago).
If appeal succeeds and she is placed in WRAG, obviously she’ll be owed arrears of CB ESA to point it expires but what happens in relation to IR ESA entitlement? On presumption client can provide evidence of diminishing capital (and of the point she would have become entitled to payments of IR ESA) is there anything to prevent her receiving arrears (and ongoing payments) of IR ESA?
that is a cracker right enough.
if you win can the conts based not enacted as per the decision then a review request done to have the income related part looked at on the basis of the change in circs (the appeal win) as the decision was made in ignorance of what is now a material fact?
That’s more or less what I was thinking. Client couldn’t have ‘claimed’ IR ESA at any earlier point as due to the WCA failure she had no ESA entitlement at that time (and could not- obviously- have predicted a future tribunal outcome). My current plan is to submit an ESA3 on her behalf along with bank statements covering the whole period and ask for IR ESA to be paid from the point her capital dropped below 16k. ESA is- after all- one benefit (as per our previous Rightsnet discussions).
Obviously the ideal thing is that tribunal places client in SG but whilst there is a chance they will it’s far from a certainty.
That’s more or less what I was thinking.
either great minds think alike or fools seldom differ.
In your case, the former. In mine, deffo the latter…
It’s an interesting one this, 1964. It’s not clear on the info provided why the appellant isn’t already on ir-ESA pending appeal if their capital diminished a year ago. Perhaps they are. In which case, I don’t think the law allows arrears of the WRAC here in the event tribunal overturns the original WCA, except for Wrac arrears paid as c-ESA which you’re aware of anyway. I’ll not give my reasons as the DWP read Rightsnet. But I think you’ve every chance of getting ir-ESA arrears to include the WRAC as the DWP get it wrong as often as they get it right it seems. And I could of course be wrong.
Bit of a long story Tom H, but no- IR ESA was never paid to her (or requested by her to be fair).
As it is, I’ve just heard the appeal failed so it’s probably all now accademic anyway.
(and thanks Jol- much appreciated- I would certainly have given it a go had appeal succeeded).