My client is employed, went sick in January and received SSP fro 28 weeks, during which time he received an IS top up via premiums. at the end of the SSP period he claimed contributory and income related ESA, 'cos that's what the DWP said people had to do. Following the recent issue of DMG memo 30/09, it seems he should have claimed IB and his IS should have continued on the basis of incapacity for work. The transitional ESA regs only prevent a new claim for IB/IS on the basis of incapacity, and this was a continuing IS claim. What would be the mechanism for getting him switched to IB/IS. Do I just ask the DWP to correct their error, treat the ESA claim as a claim for IB and reinstate the IS?
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