DWP guidance has given a useful example of what you should advice your client to claim whilst they challenge a decision that they are no longer ‘sick‘-
‘An ESA claimant attends a WCA and the DM subsequently determines that they do not have LCW. The award is superseded so as to end entitlement to ESA. The claimant disputes the decision and asks for a reconsideration. No pending appeal award of ESA can be made and they make a claim to JSA. JSA is awarded to the claimant. The DM decides that the decision cannot be revised and informs the claimant. The claimant lodges an appeal with HMCTS and submits medical evidence. They ask for ESA to be re-awarded. The award of JSA is terminated by means of a supersession and a pending appeal award of ESA is made without the need for a claim. ESA is awarded from the day after the JSA award ends.’
So initially advise your client to go for a mandatory revision and at the same time advise them to go for Job Seekers Allowance(JSA). If the mandatory revision is not successful your client should then considering appealing and at that stage could choose to claim ESA again at the assessment phase rate(they would need to provide fit for work notes to do this). They could of course choose to remain on JSA.
All of this and more is dealt with on our updated WCA under ESA/ Universal Credit– Welfare Reform course running soon. Click here