ESA 2008 vs ESA 2013

This is a side question related to the one I’ve posted here: http://www.rightsnet.org.uk/forums/viewthread/7823/

I gather that the 2013 ESA regs make various changes to the 2008 regs, but where two regs in each version are the same, which one do you cite if trying to rely on them? For example, reg 29 (2008) and reg 25 (2013) seem to be the same, so do I cite one of them or both of them if arguing that a claimant should be treated as having LCW?

Where’s the best place to find summaries of why new regs or amended regs have been introduced?

Thanks

I am still referring to regs 29 and 35. Tribunals seem to know what I mean. Maybe I’m doing it wrong, though?

It depends which version apply; is it a “new style” ESA claim; i.e. potential UC & CESA claimant, or an old style one?

The 2008 Regs apply to old style ESA which is the vast majority of cases at present.  The 2008 Regs have been amended so that they are in the same/similar terms to the 2013 ESA Regs.  The 2013 Regs apply to new style ESA.  There is also provision under the UC Regs 2013 dealing with, eg, LCW under UC.

Helpful extracts from the Chapter V8 DMG:

“Meaning of ESA

New style ESA

V8002 New style ESA is ESA as amended to remove ESA(IR)

1 WR Act 07, Part 1; WR Act 12, Sch 3 & Sch 14, Part 1; WR Act 12 (Commencement No. 9 etc.) Order, art 2(1)

Old style ESA

V8003 Old style ESA is ESA as it applies before the amendments referred to in V8002. It includes ESA(Cont) and ESA(IR)1 (see DMG Volumes 8 & 9 for detailed guidance).

1 WR Act 07, Part 1; WR Act 12 (Commencement No. 9 etc.) Order, art 2(1)

V8012 ...Note: When a UC claim is made, one of the conditions for being in the Pathfinder Group is that a person does not have LCW. Therefore, in practice, the new style ESA provisions will apply only where a person receiving UC reports a change of circumstances that they have fallen ill and claim ESA.”

The 2008 Regs will apply to the vast majority of claimants until UC is established, if it ever is.

Thanks, that’s really helpful. I believe she is being migrated from IS, though I haven’t had time to discuss all her benefits history yet. I do know that she’s been on benefits for health reasons for many years, though.

I’m guessing she comes under the 2008 regs, then, as she won’t be claiming CB-ESA or UC?

Tom H - 25 February 2015 11:08 AM

V8012 ...Note: When a UC claim is made, one of the conditions for being in the Pathfinder Group is that a person does not have LCW. Therefore, in practice, the new style ESA provisions will apply only where a person receiving UC reports a change of circumstances that they have fallen ill and claim ESA.”

 

Does this apply at the moment in your opinion Tom?

The guidance seems to infer that if someone becomes LCW (or pregnant to use their actual example) then the claimant would be permitted to claim legacy benefits; i.e. old skool ESA.

I have had a lot of mixed messages about this. I know about Daphne’s WCA/UC appeal however that’s on a relatively old UC claim before the gateway conditions were tightened so might not be a sound example of the situation going forward.

I’d have to pass on that I’m afraid Dan.  Simply because I’ve no practical experience of UC at present (it’s being introduced in Newcastle from 27/4/15 for single JSA claimants only).  I highlighted the DMG extract concerned just to emphasise that even in areas where UC is partially introduced not everyone is going to be affected by new style ESA.  We were discussing the point at a team meeting just recently.  What happens if a single claimant after, for us, 27 April this year, fails WCA which stops his ir-ESA and claims what would have been ib-JSA but is now UC pending the outcome of the mandatory reconsideration of the ESA.  If the MR is unsuccessful, he lodges his ESA appeal and wishes to go back on ir-ESA pending that appeal.  Does he stay within UC or does he revert to old style ESA?  I suppose I need to scrutinise our Gateway conditions which I haven’t done yet (eg, can he go on UC at all if he has requested MR of the ESA; if not, presumably he’d be able to claim ib-JSA as normal pending the recon)?

Tom H - 25 February 2015 03:36 PM

I’d have to pass on that I’m afraid Dan.  Simply because I’ve no practical experience of UC at present (it’s being introduced in Newcastle from 27/4/15 for single JSA claimants only).  I highlighted the DMG extract concerned just to emphasise that even in areas where UC is partially introduced not everyone is going to be affected by new style ESA.  We were discussing the point at a team meeting just recently.  What happens if a single claimant after, for us, 27 April this year, fails WCA which stops his ir-ESA and claims what would have been ib-JSA but is now UC pending the outcome of the mandatory reconsideration of the ESA.  If the MR is unsuccessful, he lodges his ESA appeal and wishes to go back on ir-ESA pending that appeal.  Does he stay within UC or does he revert to old style ESA?  I suppose I need to scrutinise our Gateway conditions which I haven’t done yet (eg, can he go on UC at all if he has requested MR of the ESA; if not, presumably he’d be able to claim ib-JSA as normal pending the recon)?

Cheers Tom

It would appear that the majority of us; much like DWP so it would appear, are grasping in the dark and hoping we don’t find thorns.

but oh so many thorns…

Tom H - 25 February 2015 03:36 PM

I’d have to pass on that I’m afraid Dan.  Simply because I’ve no practical experience of UC at present (it’s being introduced in Newcastle from 27/4/15 for single JSA claimants only).  I highlighted the DMG extract concerned just to emphasise that even in areas where UC is partially introduced not everyone is going to be affected by new style ESA.  We were discussing the point at a team meeting just recently.  What happens if a single claimant after, for us, 27 April this year, fails WCA which stops his ir-ESA and claims what would have been ib-JSA but is now UC pending the outcome of the mandatory reconsideration of the ESA.  If the MR is unsuccessful, he lodges his ESA appeal and wishes to go back on ir-ESA pending that appeal.  Does he stay within UC or does he revert to old style ESA?  I suppose I need to scrutinise our Gateway conditions which I haven’t done yet (eg, can he go on UC at all if he has requested MR of the ESA; if not, presumably he’d be able to claim ib-JSA as normal pending the recon)?

One of the gateway conditions is that you can’t be awaiting a revision of a decision on ESA so if you’re challenging the WCA decision then you would claim JSA not UC.

Dan - my UC appeal was about them not backdating the housing costs because he was late notifying - we have got that sorted now. My client was subject to the gateway conditions as they are now - he was a jobseeker when he applied. He subsequently fell ill so would fall under the ESA 2013 regs were he eligible for cont ESA but he is not so, as I understand it, the regs that apply to him are the UC regs - Schedules 8 and 9 appear to be equivalent of regs 29 and 35 as we know them.