Click here for Memo DMG 16/10.

INTRODUCTION 

1 This memo gives guidance on cases where a person who 

1. fails the PCA or

2. fails to return the questionnaire or attend a medical examination 

and is, or is treated as, capable of work, successfully appeals the decision 

incorporating that determination, but in the meantime has claimed and is entitled to 

ESA. 

2 The memo should be read with the guidance in paragraphs 9 - 15 of Memo DMG 

12/09. 

BACKGROUND 

3 Paragraphs 4 - 8 of Memo DMG 12/09 explain that a person can claim and be entitled 

to ESA while they are pursuing an appeal against a decision ending IB or credits 

which incorporates a determination that they are not incapable of work following 

application of the PCA. 

4 That guidance applies where a claimant is appealing a decision (including IS) 

incorporating a determination that they are treated as capable of work  because they 

have 

1. failed without good cause to return the questionnaire1 or

2. failed without good cause to attend for medical examination2 or

3. started work which is not exempt work3. 

1 SS (IFW) (Gen) Regs, regs 6, 7 & 9; 2 regs 8 & 9; 3 regs 16 & 17 

EFFECT OF IFW APPEAL ON ESA ENTITLEMENT 

5 The guidance to terminate the award of ESA in the event of a successful IfW appeal in 

paragraph 9 of Memo DMG 12/09 is cancelled and should no longer be followed. The 

FtT decision on the IfW appeal does not mean that the decision to award ESA was 

erroneous at the time it was made, nor does it show a change relevant to the award of 

ESA. An existing award of IB precludes a claim for ESA being made1 (see DMG 

45215), but the FtT decision to reinstate IB after ESA entitlement began does not 

provide grounds for ending the award of ESA. This is because ESA and IB are not 

incompatible benefits. In addition, once the ESA claim was decided it ceased to exist2

(see DMG 02421). 

1 ESA (Trans Provs) Regs, reg 3(1); 2 SS Act 98, s 8(2)(a) 

6 There is no provision preventing a person from being entitled to both ESA and IB for 

the same period. However, other provisions prevent both benefits being paid for the 

same period. See paragraphs 10 - 17 of this memo for guidance on the action to take 

where the IB appeal is allowed. 

7 The guidance at paragraphs 18 - 22 explains what action to take where the claimant 

successfully appeals a decision terminating credits, in particular where they were 

entitled to IS on the grounds of IfW before being awarded ESA.

Note: Where the claimant’s entitlement to IS is terminated, the claimant should be 

advised to make an appeal against the IS disallowance as well as the decision 

terminating IB or credits. 

8 This memo also applies where a decision awarding IB, credits or IS is revised either 

on an application for revision within the time limits1, or after an appeal is made2, for 

example where the claimant fails to return the questionnaire, and the DM accepts that 

there was good cause for the failure. Any reference to action to take following a 

successful appeal applies where a decision on IB, credits or IS is revised. 

1 SS CS (D&A) Regs, reg 3(1)(a); 2 reg 3(4A)