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

Waiting days following a ‘credits only’ claim

Kurt12
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Welfare Rights Service, Tameside MBC

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Joined: 6 July 2010

My customer was getting ESA in her own right then became part of a couple and her partner claimed ESA for the two of them.  They have now separated and she has made a claim for ESA for herself but seems to have incurred ‘waiting days’.  I have checked the 2013 ESA regulations (Regulations 85 and 86) but it still seems a little ambiguous to me.  I’d like to think that she would not have to serve the waiting days again.  Any clarification would be most welcome.

paulmoorhouse
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Central and South Sussex CAB

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Taking a step back from the question (and without knowing facts which might make things clearer: such as whether the partner was claiming i-r or contirbutory benefit for them both) I’m struggling to see how she can have had a ‘credits only’ claim and hence a plcw. A ‘cedits only’ claim can only exist if you claim ESA, have lcw but don’t have sufficient contributions to be paid contributory ESA (and, if you chose to claim i-r ESA you do not qualify on income or other grounds).  If she has an underlying entitlement to contributory ESA (which presumably she does because she’s now being paid under the 2013 regs) and had a period of lcw—surely her contributory ESA should have continued to be paid either alongside the partner’s contributory ESA or as income which would have been included in his means test for i-r? If she wasn’t being paid ESA it must be because she withdrew her claim and thus had no lcw . So unless the relationship lasted less than 12 weeks in which case reg 86 would kick in and there should be no waiting days this is a new claim with new waiting days.

paulmoorhouse
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Central and South Sussex CAB

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No sooner had it written that than I began to think that is she supplies medical evidence of lcw for work the fact that she wasn’t claiming ESA in the intervening period shouldn’t be fatal to arguing that it is is in fact one plcw but in the absence of this at least being argued I think the DWP are entitled to conclude that there are two distinct periods….

Kurt12
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Welfare Rights Service, Tameside MBC

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Thank you for the replies.  Just to clarify matters I understand that all the claims concerned (the claimant’s and ex-partner’s) have been income related ESA.  She was claiming in her own right, was then claimed for, and now needs to claim ESA again in her own right.  I understand that she never had another WCA during the time of the relationship (which was longer than 12 weeks by the way).

paulmoorhouse
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Central and South Sussex CAB

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In that case she won’t be covered by the 2013 regs which only relate to contributory claims under the UC regime (hence the assumptions I made).  But by the 2008 regs, the analogous regs are 144 and 145, and there is no question that she should have been regarded as having LCW througout and hence should have not have any waiting days.

Kurt12
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Welfare Rights Service, Tameside MBC

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Total Posts: 27

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Thanks again!