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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Income related ESA payment of NI

Bryan R
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Folkestone Welfare Union

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A client of mine has recently transferred from contribution based to Income related ESA. He has been informed that he does not qualify as his household income is too high. However, he has not has his medical assessment yet. Does this mean that until his medical assessment ESA will continue to pay his NI contributions.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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yes as long as he keeps his med3s up to date

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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Yes. This should also appear on the decision letter.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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CPAG p852 says that if not actually getting ESA, then you may have to apply to JCP for the credits before the end of the benefit year following the relevant tax year. See reg 8B(4) of the Social Security (Credits) Regulations 1975.

I don’t know whether in practice DWP will sort this out for you or not.

Dan_Manville
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Craven CAB welfare benefits - 27 August 2014 12:55 PM

CPAG p852 says that if not actually getting ESA, then you may have to apply to JCP for the credits before the end of the benefit year following the relevant tax year. See reg 8B(4) of the Social Security (Credits) Regulations 1975.

I don’t know whether in practice DWP will sort this out for you or not.

reg 2(a)(iva) of the credits regs appears to omit people who’ve been time limited once 365 days is up.

Jon (CANY)
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Omit, or include? I don’t know, but see Tom H’s posts in this thread:
http://www.rightsnet.org.uk/forums/viewreply/25690/

Tom H
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Thanks for reminding me of that thread.  Many long posts there.  In the present case, the person should be awarded credits at the end of tax year provided they need them (it is “includes” not “omits”).  The DWP appears to assume that you continue to have limited capability for work after your ESA ends due to time-limiting. 

When did they finish work/self employment?  They must have worked in the recent past in order to have qualified for CESA in 2013.  Depending on the outcome of his eventual WCA it’s possible that he could re-satisfy CESA again if there’s a break of more than 12 weeks between the time-limiting and a new claim.  Obviously, if he’s put in SG then the time-limiting decision would be revised and a new claim would be n/a.  Best to wait until outcome of WCA then.

This case does illustrate why there must be an obligation on DWP to do a WCA whenever a claim ends before assessment.  A recent thread discussed a scenario where a person left ESA to take up a job rather than the ESA ending early due to time-limiting.  In either scenario, however, the DWP would profit from its own wrongdoing, ie not doing an assessment within a reasonable timescale, if an assessment was not done.

Tom H
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Actually, the credits issue could be tricky if he fails the eventual WCA, ie is found not even to have LCW.  In that event, it seems the only decision that could be superseded would be the original decision awarding ESA.  The time-limiting decision could not be superseded as there’d be no continuing entitlement after it was made, and only an existing award can be superseded.  In any event, it’s likely DWP would not assume, as it otherwise would have done, that the claimant had LCW after time-limiting, leaving a gap in his credits record between the date of the time-limiting decision and the end of the tax year, ie 5/4/15.  If he requested a MR of the failed WCA decision, I doubt he’d be assumed to have LCW during the MR period so depending how long that lasted he might not have enough weeks credits when the reckoning is done at the end of tax year.  He’d need to have/or be treated as having LCW for 50 out of 52 weeks in order for 2014/15 to count.  If he eventually successfully appealed the WCA and was put in WRAG then DWP would once again assume that he had LCW beyond time-limiting.  See my earlier post if tribunal put him in SG.

If he was unsuccessful with his appeal or chose not to appeal, he could still, of course, apply for credits by furnishing info, eg a backdated sick note, supporting his LCW for the period from date of time-limiting to end of tax year.  That is arguably what all claimants should do anyway instead of relying on a legally dubious DWP practice of assuming time limited claimants continue to have LCW.  He’d have no other option if not appealing etc.  I don’t think the failed WCA would be final for any period after the date of the time-limiting decision.  So he could be credited for all weeks from 6/4/14 until he was time limited, and be further credited after time-limiting for however number of weeks were required to give him 50 weeks.  He might have to appeal a refusal to award him credits for the latter period.  Just because the failed WCA is not final doesn’t mean it doesn’t have evidential value in suggesting he does not have LCW for the period concerned.  He’d have a sick note to support his LCW for that period.  A tribunal would have to decide which it preferred.

[ Edited: 3 Sep 2014 at 01:57 pm by Tom H ]