Couldnt think of any other title to give this subject.

Case in hand - cl on IS as IOW. Been to several medicals before, completed IB50 and waited. IS stopped several months later as failed to attend medical (She never received an invite). Her son used to steal her mail and presumed this happened to the appointment letter. Cl appealed.

Initially went to reclaim IS as IOW while appeal ongoing. However, switched claim to JSA as not getting any money while incapacity determined.

So from 3/1 JSA claim in payment.

Tribunal at end of Mar 08 accepts client's version of what happened.

DWP accept tribunal decision and award IS with DP from when it had stopped up to her claim for JSA on 3/1.

They state cl has to reclaim IS (which she has done) but wont pay her the excess of IS over her JSA (basically the DP) for the period she claimed JSA.

This cant be right, can it? I know a few years ago we had problems in getting claims sorted out after a successful tribunal where clients had failed PCA and claimed JSA while appeal ongoing. What is the difference here?

Any views.......

I think once an appeal has been made on PCA, is paid at a reduced rate, and the DP stopped, once the appeal is succesful, it will get revised by the tribunal under reg 7A or 7B of the D&A regs 1999, which ever one appropriate. So given that the original claim IS claim is then live and can get revised, there will be no need for another claim? DP for the whole period should be backdated. Though given that you cannot have two claims open [jsa and IS) then I think should close the book on jsa immediately after the tribunal.

i think the problem in this case is that it was disallowed on failure to attend not failure of PCA. it beats me why they disallowed it when she gave her reasons for not attending - the obvious thing to do was accept her word and arrange another medical. did they ask her reasons? strictly speaking, the claim covered by her appeal ends when she makes a fresh claim, and i expect that that's the reason you are having trouble now, and why they didn't pay reduced rate IS.
added to which, the schedule in C & P doesn't allow claims for JSA to be treated as claims for anything else, so it could prove tricky

claims for JSA should not prejudice PCA appeals - where does that come from exactly...? her reasons for claiming JSA are quite clear, and she shouldn't suffer loss as a result of a disallowance decision which has been overturned...but i suspect you have a fight on your hands... decision-makers do seem to have become benefit refusal officers, not impartial decision-makers...

Had this in Brum not too long ago... JC+ needed continuing evidence of Incaapcity and a sicknote for the period while claiming JSA sorted it out...

maybe missing the point here (and I agree that the IS+DP should be restored retrospectively on production of relevant medical evidence to cover/overlap "JSA period")...but why would she not get a DP retrospectively in any event, as DP can be paid on JSA??

Thanks everyone for the above replies. I too think I am going to have a fight on my hands.

I'd always thought, as per standard "failed medical due to too few points" appeals, that the tribunal's decision overturns the decisions given before ie as in when a claimant claims JSA during the appeal. I cannot see why it is any different here. She was told she'd failed the PCA (albeit for failing to attend) and in practice what difference is there is claiming JSA after failing PCA for any reason, where a tribunal overturns the deicison.

However, I can see that trying to force a particularly pedantic decision-maker to change the decision may be difficult.

I did not think the DP would be paid on JSA as the reason she is entitled to it it is by reason of being IOW - DP can be paid on JSA I accept but would that not be where, for example, the claimant of JSA gets DLA? This doesnt apply to my client.

Thanks for views.

Hi Paul

sorry but I missed something in my reply. for reg 7A etc read, reg 3 of the D&A regs para 7A, 0R 7B OR 7C.

just thought... para 5(2) of Payments on account etc...this is a case 2 type...the revision by the tribunal enables a determination to be given that a benefit payment should be treated as a payment of benefit in lieu.

It should be straight forward. The tribunal does not revise under the revision regs. It merely stands in the decision makers shoes and gives the decision that the DM should have given using the powers conferred on it by section 12 of the SS Act 1998.

The tribunal then allows the appeal and restores the claimant to his original position, rendering the DM's decision of no legal effect. There is no need for a fresh IS claim. A claim is a claim to entitlement but he is already entitled so there is no need to re-claim. The DWP might wish for a signed statement saying no change of circs but that is a different matter altogether.

The DWP merely re-instate IS, supesede the JSA decision as Jan suggests and offsets any amount of JSA paid. Entitlement to the DP is restored and continues throughout the period of IS disallowance and continues still. Why on earth do the DWP have to complicate eveything?