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

Should my client still be recieving CB ESA?

Mrs Mac
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Macmillan, CAB

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Total Posts: 14

Joined: 4 June 2014

Client was migrated from IB to ESA and found fit for work.  Decision dated 13/01/13.  She appealed and decision was overturned on 22/05/14.  She was found to have LCW and awarded this for 2 years.  She was also advised to make a new claim as her condition had worsened.  This she did in June/July.  As initial claim was CB only she received a lump sum and nothing else because of the 365 day rule.  Decision on new claim was not made until 05/03/15 and she was awarded SG component from 21/07/14.  She has never received any payments and received a letter dated 31/03/15 stating she would not be paid ESA from 5/12/14 because she had not paid, or been credited, with enough NI conts.
I’ve read CPAG page 862 (14/15 edition) that reads to me client qualifies for cb ESA again without having to satisy the contribution conditions.  Can anyone advise?  I didn’t help her with the 2 claims so cannot be more precise on dates or whether the second claim was backdated.  The dates just don’t add up to me!

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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I think that if she continued to have LCW after the 365 day limit (e.g. she was receiving NICs) and the claim was not broken, she is entitled to be paid in the SG without a new test of NICs.

S52 Welfare Reform Act - 

52 - Further entitlement after time-limiting

(1)After section 1A of the Welfare Reform Act 2007 (as inserted by section 51 above) there is inserted—
“1B Further entitlement after time-limiting
(1)Where a person’s entitlement to a contributory allowance has ceased as a result of section 1A (1) or (4) but—
(a)the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,
(b)the person satisfies the basic conditions, and
(c)the person has (or is treated as having) limited capability for work-related activity,
the claimant is entitled to an employment and support allowance by virtue of this section.
(2)An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part.”
(2)In section 1 of that Act (employment and support allowance), in the definition of “contributory allowance” in subsection (7), after “subsection (2)(a)” there is inserted “(and see section 1B(2))”.

Mrs Mac
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Macmillan, CAB

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Total Posts: 14

Joined: 4 June 2014

Thanks Andrew.  This was how I read it.  Now I need to persuade the DWP….