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

Disabled school leavers when can ESA(IR) start ?

adviceplus
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Rhondda Cynon Taff CBC (Welfare Rights Project)

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Every other year we seem to run into this problem but this year we also had various call centre advisers giving the same information so maybe it is more wide spread


Scenario : Young person, say aged 18, in receipt of DLA , parents have been claiming Tax credits for the YP as this was financially better than YP claiming ESA

YP will not re-enter education but will attend day service so Tax Credits needs to stop from last day of term

So ,as they could be a disabled student anyway we put in claim for ESA ,and the Terminal date for Child Benefit should not apply
We also phone to Child Benefit to relinquish the claim for Child Benefit.
Invariably CHB says they cannot do this because the Young Person is not yet RECEIVING   the ESA
and than ESA says they cannot start that claim because the YP is still a child for CHB purposes as CHB is still in payment
We now resort to the parent formally writing to relinquish CHB which we also do when the YP is to become an ESA claimant under the “better off” calculation whilst still in school

But it causes so much hardship as the claim for ESA is only activated when there is proof that CHB is stopped so that also prevents backdating unless \CHB would want to go to a process of deciding an overpayment (eg. parent states they want to relinquish claim from the day after end of term but only writes in 2 weeks later)

The other worrying development we saw more this year is that several ESA advisers categorically stated that ESA could only start from the Terminal date even though it is pointed out that the YP is disabled and in receipt of DLA.

Looking at the law Reg 8 of CHB does say that the YP needs to receive but surely activating the ESA claim should than
Just wondering if any of the organisations for the young disabled have developed the most smooth or advantageous transfer

Of course the easiest would be if Tax Credit also operated the terminal date but I believ I got it right that thequalifying child is only the case for YP who are actually enrolled to continue education?

As always, any help most appreciated

 

 

 

Rosie W
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Welfare rights service - Northumberland County Council

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We are having exactly the same problem. I am wondering if some new “guidance” has been issued which has led DWP/HMRC staff to believe that it is actually impossible to stop claiming Child Benefit - or in conspiracy theory mode, to keep young people away from claiming income replacement benefits in their own right until after the terminal date.

Just had a similar issue but relating to pregnant 18 year olds within 11 weeks of their EWD, parents have terminated Child Ben and CTC claims and they are being told they cannot claim IS until their babies are born. And a 17 year old who was told she could not have an appointment with the under 18s adviser until her baby is born.

I wish we had found a way of dealing with it smoothly - I’ve resorted to saying to parents that it might be easiest just to make the ESA claim and keep hold of enough to repay any Child Ben which is paid during the same period as ESA. I am also advising them to make complaints. Especially the one who was told by a Child Ben agent that she shouldn’t be asking welfare rights for advice about anything…

Maybe I’ve just got old and cynical but it does feel that generally everything to do with any benefits is taking much longer and much more effort to deal with, is stupidly complicated by wrong and misleading information given by telephony agents and benefit centres and that there is a worryingly obstructive attitude towards claimants and advisers.

Is it Friday yet? Oh….

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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They must process the ESA claim irrespective of the status of the CB award.

1964
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Rosie W - 30 July 2014 05:20 PM

Maybe I’ve just got old and cynical but it does feel that generally everything to do with any benefits is taking much longer and much more effort to deal with, is stupidly complicated by wrong and misleading information given by telephony agents and benefit centres and that there is a worryingly obstructive attitude towards claimants and advisers.

I agree wholeheartedly. And whilst Nevip is quite correct in what he says, the problem is getting them to do it. By the time you’ve argued the toss, tried (fruitlessly) to elevate it, lodged a complaint and taken it to the client’s MP in desperation the CB has stopped anyway (or whatever. Choose your scenario).

adviceplus
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Rhondda Cynon Taff CBC (Welfare Rights Project)

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I also agree with nevip that ESA has to process the claim  

I have now got a decision turning down the initial claim and stating that there was no entitlement.

We are invited to make a new claim from the date CHB is relinquished

We asked for a Mandatory review of the decision as well

I have also sent all the info to the partnership liaison again because as said , last year we did not have the issue and that was following making enquiry in 2012 when it was pointed out then.
On Rosie’s point , looking at the Decision Maker Guides, the supplements are all dated up to 2011 . So the guidance has not changed.

What annoys me is that this group of claimants should be the most straight forward ones and used to be ,at least in principle ,so under Incap in Youth and now carers have to jump all these hurdles.

adviceplus
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I also agree with nevip that ESA has to process the claim  

I have now got a decision turning down the initial claim and stating that there was no entitlement.

We are invited to make a new claim from the date CHB is relinquished

We asked for a Mandatory review of the decision as well

I have also sent all the info to the partnership liaison again because as said , last year we did not have the issue and that was following making enquiry in 2012 when it was pointed out then.
On Rosie’s point , looking at the Decision Maker Guides, the supplements are all dated up to 2011 . So the guidance has not changed.

What annoys me is that this group of claimants should be the most straight forward ones and used to be ,at least in principle ,so under Incap in Youth and now carers have to jump all these hurdles.

Jon Shaw
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adviceplus - 05 August 2014 04:40 PM

I also agree with nevip that ESA has to process the claim  

I have now got a decision turning down the initial claim and stating that there was no entitlement.

We are invited to make a new claim from the date CHB is relinquished

We asked for a Mandatory review of the decision as well

Blimey. I’m unsurprised about the faffing around, but to actually get a decision refusing irESA…?!

I think that nevip is (as usual spot on). I also think that if the client has told Child Benefit Office that an irESA claim has been made from day x and they then carry on paying, that there is no hope of HMRC successfully arguing that the overpayment of child benefit that will result is recoverable. I don’t think any reasonable tribunal would accept that the claimant had failed to disclose a material fact (that an irESA claim has been made) here. Worth doing everything in writing and keeping copies, jsut in case, though…

As an aside, whilst the SS(PAOR) Regs allow specifically for the offset of child benefit already paid against ESA in youth entitlement, this does not apply to income related ESA (see Reg 5, Case 3). I’d not be entirely surprised if you had to challenge that too…

Rosie W
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I think we are all aware they have to process the claim, it is as discussed earlier in this thread, how a claimant gets them to do this, particularly if they do not have access to advice. My ESA/CB client has now got the ESA claim for her 18 year old son up and running after finally getting someone sensible at the Contact Centre. She has also got a TC overpayment notice.. She phoned TC to let them know his final attendance date at college and was told they couldn’t possibly action that until he had actually finished. So she obediently rang them again on that day to be told it was “too late” to stop the next payment. I repeat what I said before about wrong and misleading information and obstructive attitudes. Knowing the law means we are (usually) able to sort things out in the end but doesn’t prevent claimants increasingly being given the run around and suffering stress, anxiety and hardship as a result.