We have a client who applied for ESA in February 2016. He was refused ESA due to failing the right to reside test. This decision was appealed, but stayed behind Gubeladze. Following the Supreme Court judgement, the decision regarding his RTR test was revised in his favour in August 2019 (no need to register employment with HO worker registration scheme from 2009-2011, so had achieved a permanent RTR).
Whilst the appeal was stayed, the DWP continued to assess a credits-only ESA claim. The client attended a WCA, but in December 2016 the claim was refused as he did not have LCW or LCWRA. He was sign-posted to apply for JSA instead, but did not do so due to the ongoing appeal regarding his RTR.
My question is, after being found to have a RTR, should he be awarded arrears of ESA assessment phase from February to December 2016? Or does the fact he was never paid any benefit mean the ESA claim can be completely refused from February 2016?
Any help much appreciated, as I’m not an expert in ESA.