IB appeal won but still on ESA?

With help from yourselves and an independant councelling service I have won my IB appeal. I have received the back pay that they owed me, however, the letter states that I will remain on ESA. I am now confused. Surely I should be back on IB rules until they start the migration process. Any clarification would be gratefully received as I have an ESA50 to complete as well as appointment to see my advisor as required by ESA not IB.

Hi susie, I would have thought if you completed the IB50 and your appeal was based on that and you won, you would go back on Incap Benefit. Have you got a review date.? Most review dates seem to be 2011, 2012 etc leading up to the migration to ESA. I am not a qualified adviser but perhaps steve or one of the moderators could give you clarification. Best Wishes

Hi Susie,

This seems to be happening more frequently now, but I don't know what the legal basis for it is.

The first step in circunstances like these might be to inform the DWP that you wish to remain on IB and ask them to change the decision to place you on ESA. It may also be worth asking on what legal grounds they are transferring you to ESA.

But, if you possibly can, get support from an advice agency with this.

Let us kmow what happens next.

Good luck,

Steve

Susie2steps
Allsop wrote:

With help from yourselves and an independant councelling service I have won my IB appeal. I have received the back pay that they owed me, however, the letter states that I will remain on ESA. I am now confused. Surely I should be back on IB rules until they start the migration process. Any clarification would be gratefully received as I have an ESA50 to complete as well as appointment to see my advisor as required by ESA not IB.

Atos have made a mistake in sending you an ESA50 instead of an IB50, as the migration process has not yet started.

In reality you could simply not complete the ESA50. It is up to the issuing authority to issue the correct form, and not for the claimant to raise a query. If you didn't complete the ESA50 and the DWP terminated an IB award on the basis of non-completion of this form, the decision would be legally defective and couldn't be allowed to stand, as IB and ESA are two completely different benefits.

Obviously there is an element of risk involved in this strategy, and the DWP on realising the error would simply ask Atos to issue the correct form, an IB50. They may also attempt to terminate your IB in the process, although in law the decision would be wrong and you could appeal purely on those grounds. However, the challenge would only be a pyrric victory, and could possibly open up a can of worms with unpleasant repercussions.

They may also attempt to terminate your IB in the process,

Dare I ask how could they do that?

So basically you're saying folks should expect to be transferred well before the official migration point.

Oh dear I'm up for renewal soon (they're a year late in doing so I hasten to add) and I suspected they'd try something like this.

sueworld wrote:

They may also attempt to terminate your IB in the process,

Dare I ask how could they do that?

So basically you're saying folks should expect to be transferred well before the official migration point.

Oh dear I'm up for renewal soon (they're a year late in doing so I hasten to add) and I suspected they'd try something like this.

The migration of IB claimants to ESA will commence on a trial basis in Burnley and Aberdeen in October 2010, and will be fully implemented with effect from February 2011. There is no provision in the current regulations to migrate claimants before these dates.

Insofar as terminating your award of IB arises, as I said in my earlier post, if you failed to complete and return the ESA50 which is the wrong form, Atos could simply inform the DWP that you did not reply to their correspondence. The DWP in all probabilities would not know that you had been sent the wrong form, and just assumed that you didn't return an IB50 and therefore automatically find you capable of work. This situation could occur because Atos took full control and responsibility for both the PCA and WCA from October 2008. Before this date it was the responsibility of the DWP, but they still ultimately make the decision on entitlement.

In your circumstances, you could query the issue of the ESA50 and request an IB50, but as I alluded to in my previous post, it is not the claimant's responsibility to determine the designated procedure for the PCA, because they are entitled to expect the issuing authority to have followed the correct procedure. By not following the proper procedure, you could inadvertently become a victim of maladministration, hence the incorrect termination of your IB award.