× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

opting for Carers Allowance & Income Support whilst awaiting appeal hearing

FIT Advisor
forum member

benefit advice officer, three rivers housing association, co durham

Send message

Total Posts: 144

Joined: 18 June 2010

I have a customer who was on CB ESA, found fit for work, claimed CA & IS rather than ESA at the assessment rate as she also had DLA in payment.  Successful appeal and placed in WRAG. Was contacted by DWP who asked if she wanted ESA paid or CA., advised her ESA claim would sit in the background to pick up again if CA ceased.  Her father has recently passed away and when she tried to have ESA reinstated was told her ESA claim had been closed down and she would have to reclaim. Back in payment but at the assessment rate until medical carried out.  I understood when 2 contributory benefits are claimed, the higher benefit is the one paid and in this particular case the CA would become underlying and this seemed to fit with the initial advice. I am aware that at some point the CB ESA would have been exhausted and not sure if this is a factor in an actual end and no assessment for IB ESA as she was on CB. However if her CB ESA claim had not been exhausted I feel the advice given was flawed and she should have had her CB ESA reinstated.

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

Do you know what caused the cessation of the credits claim? The period of limited capability for work should have continued; likely something’s caused it to end, missed esa50 praps

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

sanwyp - 15 December 2014 07:41 PM

Was contacted by DWP who asked if she wanted ESA paid or CA., advised her ESA claim would sit in the background to pick up again if CA ceased.

Wasn’t the presented choice between ESA or IS?

BC Welfare Rights
forum member

The Brunswick Centre, Kirklees & Calderdale

Send message

Total Posts: 1366

Joined: 22 July 2013

Only CB ESA is contributory, IS and CA are non-contributory. If she had decided to be paid CB ESA, her CA would have become underlying due to overlapping benefit rules (she would still have got the Carers Premium in HB/CTR). But she chose to claim IS/CA and therefore the CB ESA claim became credits only.

As Dan Manville says, ESA credits shouldn’t have expired of their own accord, something must have happened for the period of LCW to be broken. It’s always possible that the client may have not bothered to return an ESA50 or attend a medical thinking that it did not matter as she was not receiving ESA anyway. Or the ESA50 may have gone astray in the post and because the client was not getting paid she did not notice. I would want to double check that this has not happened first.

Hopefully, the DWP has just made a mistake re her original LCW period ending (it occasionally happens!!) and you can sort it out.

There is also the issue of whether she was entitled to Income Related ESA as well as Contributory. The fact that she subsequently got IS suggests she would have been entitled. IR ESA (£72.40) + WRAG (£28.75) + Carers Premium (£34.20) would have been more money per week than IS + CA (£106.60).

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

Billy Durrant - 16 December 2014 05:10 PM

IR ESA (£72.40) + WRAG (£28.75) + Carers Premium (£34.20) would have been more money per week than IS + CA (£106.60).

The original post says she also receives DLA. If so then that would have added a disability premium to an IS claim, taking it up to £138.45. Hence the DWP may well have been correct to advise she would be a bit better off on that than on work-group ESA.

On the other hand, that advice might not have been so good. It may be worth finding out if the award was voluntarily given up before the c-ESA expired. If it was relinquished, then I think there might be a problem in advising someone to give up a c-based award in that way, which is that she might not be able to get it back. If she has a change of circs that removes ir-ESA (working partner, etc), then she will lose out if she has no c-ESA. Assuming that she can get DWP to accept that she has had a continuous period of LCW, then in the event that she qualifies for the Support Group in future, how would requalify for c-ESA? Section 1B of the Welfare Reform Act 2007 allows for c-ESA which has run its 365 days to come back into payment if cl ever falls into the Support Group, but what about where someone has voluntarily relinquished the c-ESA claim prior to the 365 days?

There is at least ESA reg 8, which if she is claiming CA may help her to rely on old tax years for a new c-based claim in future.

Anyway, sorry if I’m overcomplicating it. As others have said, the first question to put to DWP shouldn’t be why was her ESA claim “closed down” [on the DWP computer], it’s “when and how did the period of Limited Capability for Work come to an end?”

BC Welfare Rights
forum member

The Brunswick Centre, Kirklees & Calderdale

Send message

Total Posts: 1366

Joined: 22 July 2013

Craven CAB welfare benefits - 16 December 2014 06:00 PM

 

The original post says she also receives DLA. If so then that would have added a disability premium to an IS claim, taking it up to £138.45. Hence the DWP may well have been correct to advise she would be a bit better off on that than on work-group ESA.

True, it does. I had misread that as the father receiving DLA. Why do you think her CB ESA might not be reinstated under the circs you describe?

FIT Advisor
forum member

benefit advice officer, three rivers housing association, co durham

Send message

Total Posts: 144

Joined: 18 June 2010

Just to confirm that when she initially appealed the decision on her CB ESA and had the choice of ESA paid at the assessment rate until appeal heard or claim Carers Allowance, she opted to claim Carers Allowance.

The CA award letter advised it was underlying.  DWP advised that she could not have ESA paid with a carer premium whilst she was appealing and advised that she had to opt for the CA to be paid with IS.

After the successful appeal, the Dept contacted her again and advised that she could remain on CA and IS with the claim for ESA running in the background.

Following the death of her father,  she contacted the dept to have her ESA put back into payment only to be advised the claim had closed down and she had opted for this.  She disputes this. She never received a decision letter advising the ESA claim had ended.

Agree that we would all advise protecting a CB ESA award after the 365 days to enable a contribution based award to be secured should there be move to the support group.  The problem is customers who are only awarded NI credits do not realise they have a claim subject to the same conditionality as one where a payment is made and may not comply with any requests that keep the claim live such as completion of ESA50 or attending medicals.

I had another case where Bereavement Benefit was paid with the previous CB ESA suspended during the 52 weeks.  I found it very difficult to get the ESA reinstated as BA ended and also discovered that during the 52 weeks of BA she had not had a disability premium included in her HB/CTB to reflect the ESA claim was running in the background. It was eventually reinstated and arrears of HB/CTB paid by LA.

[ Edited: 17 Dec 2014 at 07:58 am by FIT Advisor ]
Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

Right, she claimed Carers so presumably Carers Credits were paid.

I can see how, in JCP management terms a new credits claim would possibly interrupt the credits from an ESA claim, however the credits alone are not the issue that is determinative of the period of LCW; she would have to have done something to disturb that.

My guess is that they’ve just killed the ESA credits to put the carer credits into place and now are saying “no” to putting the esa credits back in.

Also, why no ESA with CP? That sounds rubbish to me.

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

Billy Durrant - 16 December 2014 06:30 PM

Why do you think her CB ESA might not be reinstated under the circs you describe?

Because unless it meets the 12 week linking rules, it would be a new claim, and have to satisy the contribution conditions in some way. I don’t think an “underlying” LCW changes that (I now await Tom H to post in this thread and correct me :)

she initially appealed the decision on her CB ESA and had the choice of ESA paid at the assessment rate until appeal heard or claim Carers Allowance, she opted to claim Carers Allowance.

The CA award letter advised it was underlying.  DWP advised that she could not have ESA paid with a carer premium whilst she was appealing

This doesn’t make much sense. If the CA was underlying, what was it overlapping with, if not c-ESA? And why could a carers premium not be paid on ESA? Anyway, whether or not there is a complaint to be made in there, I think your client should ask for a recon on the decision to only pay the assessment rate on the new claim.

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

You’re presumably getting that chronology from the client.  I bet the DM’s recollection of what was said is different.  There’s so much wrong advice from DWP after all, eg, a CP could have been added to her ir-ESA applicable amount and ESA (whether cb or ir or both) would never have run in the background given she was in receipt of IS.

But how much in reality has client lost?  The DM’s advice made her financially better off pending the ESA appeal as Craven Cab pointed out.  She could also have expected to be re-assessed under the WCA within a couple of years had she chosen to stay on ESA instead of claim IS.  Obviously the dad’s death now makes her question the quality of the DM’s advice.  But if the Dwp had correctly set out all the pros and cons at the outset do you honestly think she would have chosen anything other than the IS/CA. 

She probably has not lost the chance to get back on cb-ESA, again as Craven Cab mentions, as she’s likely to be able to use Reg 8 ESA Regs to make her present ESA contributory.  Ok, so she’s in the assessment phase again and will need to undergo WCA but, as stated above, she’d have had eventually to be re-assessed anyway.

She appealed the original ESA decision which would, depending on how long she’d already been in the assessment phase waiting for her medical/WCA, normally have re-started her cb-ESA pending the appeal without her having to make a new claim for it.  But she claimed CA/IS.  The CA award letter showed that it was underlying because at the point CA was awarded she must have either not yet claimed IS or, if she had, the IS must not yet have been awarded.  As soon as IS was awarded the award of cb-ESA pending appeal would have been terminated and CA would no longer have been underlying.

The credits, as usual, is a complete red herring.  Whilst on IS none of the days would have been days of LCW so she would never have had a legal basis for claiming Lcw credits.  Her credits instead would arise from the fact she was caring and the CA should have been payable.

sanwyp - 17 December 2014 07:52 AM

..The problem is customers who are only awarded NI credits do not realise they have a claim subject to the same conditionality as one where a payment is made and may not comply with any requests that keep the claim live such as completion of ESA50 or attending medicals.

The irony is that the customers are, at least legally, right.

[ Edited: 17 Dec 2014 at 10:32 am by Tom H ]
FIT Advisor
forum member

benefit advice officer, three rivers housing association, co durham

Send message

Total Posts: 144

Joined: 18 June 2010

Thanks guys, your views much appreciated. Tom, are you advising that if only NI credits are awarded on a claim, then customers do not have to engage in any way?

[ Edited: 17 Dec 2014 at 12:20 pm by FIT Advisor ]