UC gateway

Client has claim for ESA refused.  He tries to make a claim for JSA but is told he has to claim UC instead, and does so.
He then gets advice and asks for an MR of the ESA decision, still within 1 month of the decision. 

Can he get out of UC and back onto JSA until his ESA MR/appeal is decided?

If not and his ESA challenge is successful what will now happen to his UC claim?

he stays on UC and if the appeal is successful he will be on UC with a LCW/LCWRA element. Once on you stay on. If he had started the challenge before his JSA claim then he would not have met the gateway conditions.

To have made it through the gateway conditions the claimant must have met the test at para 2(3) of Schedule 5 to the No 9. commencement order.

“(3) The claimant—
(a) must not have obtained from a doctor a statement given in accordance with the rules set out in Part 1 of Schedule 1 to the Social Security (Medical Evidence) Regulations 1976(20) (“a statement of fitness for work”) in respect of the date on which the claim for universal credit is made, unless it has been determined, since the statement was given, that the claimant does not have limited capability for work within the meaning of the 2007 Act;

(b) must not have applied for a statement of fitness for work;

(c) must declare that the claimant does not consider himself or herself to be unfit for work; and

(d) must not have been the subject of a determination that the claimant has limited capability for work within the meaning of the 2007 Act, unless it has subsequently been determined that the claimant does not have limited capability for work within the meaning of that Act.”

If the ESA appeal is successful then could any of these constitute “incorrect information” about whether the claimant met the gateway conditions?  And could subpara 3(c):  mean it was incorrect information’ even at this stage- ie before the appeal is decided?

If so, it’s possible that timing could be important as it looks like whether he can go back or not might depend on whether any UC has actually been paid.

See ADM M3150 onwards (particularly M3175)

https://www.lampfrey.net/adm/light/admM3.html#M3150