contribution based ESA and absence abroad

Client receives CB ESA only (no entitlement to IR), has been on sick benefits for about 20 years. She is planning on going on 2 months holiday abroad (no medical treatment, etc.). Her ESA will stop as more than 4 weeks abroad.

Will breaking the continuous entitlement to CB benefit mean she is unable to reclaim on getting back?

Provided she reclaims within 12 weeks, her claims can be linked and should be continuous, so she does not need to resatisfy the NI conditions (CPAG p1040).

I think it’s arguable that the linked ESA award, ie the one whose pLCW starts within 12 weeks of the old pLCW ending, can be contributory despite the contribution conditions not being satisfied in respect of it.  But I can see the DWP disagreeing and to be fair the law is not clear.  I’d say it’s implicit in Reg 21 ESA (Existing Award) (No2) Regs 2010 that the main award of converted cESA (ie personal allowance plus relevant component) must be restored along with the contributory Transitional Additional.  Reg 21expressly provides for the latter only.

Thanks both.

Hmm, still can’t get my head round this. CPAG p.1040 links back to P. 999 which refers to not having to satisfy the contribution conditions for those in WRAG limited to 365 days, or transferred from Incap Ben.

Tom, unless I’m looking at the wrong legislation - The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 -  Reg 21 is about work or training beneficiaries??

I am pretty clear from Reg 145 of the 2008 ESA Regs and 86 of the 2013 ESA Regs that she will be treated as having continuing LCW. But I still can’t make out what the effect of a 2 month gap in CB ESA has on entitlement going forward.

Billy, it’s these regs. 

Any new claim for ESA made within 12 weeks of the old one ending would trigger Reg 16(1A) of the above Regs so that the new claim would be subject to the above regs.  The latter amend the ESA Regs 2008 and Welfare Reform Act 2007.  The client would, therefore, have to show that he satisfied section 1(2) of the WRA 2007 as amended which provides as follows: 

“(2) Subject to the provisions of this Part, a person is entitled to an employment and support allowance if the person satisfies the basic conditions and–

(a) in accordance with Part 2 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010, the effect of the conversion decision that was made in relation to the person was to convert the person’s existing award or awards into a single award of an employment and support allowance;

(b) that conversion decision has come into effect.”; and

(c) n/a”

I don’t think Reg 145 resurrects the original award of converted ESA.  That ended due to an absence abroad of more than 4 weeks.  Instead, I think Reg 145 allows a new lot of cb-ESA to be awarded if the above paras (a) & (b) are still satisfied at the date of the new claim.  In other words, the same test of entitlement to cb-ESA that applied to the conversion decision applies to the new ESA claim.  In your client’s case it’s arguable that she still satisfies (a) & (b) above at date of new claim, although it’s (b) that’s contentious. DWP might say that it requires the conversion decision to be of continuing effect, whereas it’s equally arguable that all it requires is that the effective date of conversion has passed, which it has here.

Edit: on reflection, it seems there’s no provision for there to be an assessment phase re the new award of cb-ESA given that the Existing Award Regs above also amend the ESA Regs to, in effect, remove Regs 5-7.  Seems the only way to argue it would be that the new claim in the current circs does effectively resurrect the original converted ESA award so that main phase and component re-commence from day 1 of the new award.  I’d mentioned in my earlier post that Reg 21 of the above Regs appears to allow any contributory transitional addition to be resurrected in these circs and it would be a little strange if the main phase and component didn’t return with it.

Thanks for taking the time to look at this Tom, much appreciated. She is away April and May so I’ll update after then.