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

time limiting and linking periods

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Joined: 16 June 2010

Since we’ve been swimming (some might say drowning) in an endless sea of benefit changes you sometimes feel as though you’ve forgotten your own name and start to drown in periods of self doubt.  Have I overlooked anything?

My client was originally on IVB/ICB (continuously) and failed conversion in 2012, appealed, won her appeal in September 2013 and put in the WRAG.  However by the date of tribunal her 365 days were up so entitlement ceased.  In August 20014 she applied to go in the SG and DWP sent file to Atos.  Atos have made a right mess of this by the way.  However, because the SG request (even if that could be treated as a new claim) was outside the 12 week linking period the contribution years shift forward and client will not satisfy the first contribution condition as she hasn’t worked since dix docked.  No entitlement to IR/ESA as her husband works full time.

Tom H
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Newcastle Welfare Rights Service

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Provided she’s not worked, claimed JSA or done anything else that’s inconsistent with having LCW, the Dept would have treated her as having LCW from the date her old cb-ESA was time-limited until the present.  If Atos/DM now put her in the SG her contributory ESA re-starts by virtue of secton 1B WRA 2007 (section 1B, as you know, is potentially an indefinitte linking period so doesn’t matter that she’s outside 12 weeks).  Whilst there is still an assessment phase re the new award, she doesn’t have to wait until it ends before she can be paid the SG component (Reg 7(1)(d) ESA Regs).  Whilst she’d normally have to serve 7 waiting days re the new award, she is exempted by virtue of Reg 144(2)(e) from having to serve them.  Consequently, cb-ESA incl the SC can re-commence from day 1, ie Aug 2014.

The problem as you rightly identify is whether she has made a new claim.  The request to be re-assessed is possibly a defective claim.  But it doesn’t really matter.  If she re-claims ESA now then, as we know, she can ask for 3 months backdate which would take her to Aug 2014 anyway (doesn’t even need sick note for that period as she has continued being treated as having LCW by DWP ever since she was time-limited as above).  Needs to get into SG re new award however.

See DMG 41862-41870.

[ Edited: 24 Nov 2014 at 06:35 pm by Tom H ]
nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Total Posts: 3135

Joined: 16 June 2010

Thanks Tom.  That was my initial, instinctive view.  But, I’d confused myself by something I’d misunderstood in CPAG which led me to lose sight of s1B.  That’ll teach me to stray from the statute.  Will now press on.