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HB & full time student with ESA NI Credits only (support group)
Hello!
A client was on PIP which stopped in November 15 following a review and which is now at the appeal stage. She is a full time student and has a NI credits only claim for ESA (support group) due to her student loan income. Once her PIP enhanced rate daily living is hopefully reinstated her applicable amount will include the SDP so she should be entitled to some ESA (IR).
However in the meantime, does she qualify for HB? The HB Regs 2006 (3A) state an entitlement to ESA (IR) when it is payable on any given day; “payable” is interpreted by Judge Mesher means “properly or lawfully paid” or something akin to that.
Also, my client would surely satisfy Reg 56 (ea) as she has been assessed for the support group and therefore has a LCW for not less than 196 days??
Many thanks
[ Edited: 14 Jan 2016 at 01:07 pm by Daphne ]I’m confused. You say she should qualify for ir-ESA when her DL component is restored. So was she receiving ir-ESA and HB before Nov 2015, ie the date her Pip stopped? If not, she may need to protect potential arrears of ESA and HB by claiming now.
Assuming she doesn’t meet any of the other exceptions under Reg 56 HBR, she does not appear at present to satisfy either para (a) or (ea) of Reg 56.
Not (a) because, as you identify, Reg 2(3A) HBR requires the ir-ESA to be payable and ESA is not paid or payable at present. She has no entitlement to it whatsoever at present. Credits are not ESA. And a determination that you have limited capability for work-related activity (ie the support group) is meaningless when it comes to credits.
Not (ea) because she does not have limited capability for work (LCW) nor can she be treated as having LCW at present because she’s not entitled to ESA, either contribution-based or income-related. At best, she has credits whose legal basis is Reg 8B(2)(a)(iv) of Social Security (Credits) Regs 1975. Under that reg, credits can be awarded if each day of the week:
“was a day of limited capability for work for the purposes of Part 1 of the Welfare Reform Act (limited capability for work) or would have been such a day had the person concerned been entitled to an employment and support allowance by virtue of section 1(2)(a) of the Welfare Reform Act”
In other words, had she met the contribution conditions for ESA she would have had LCW. We know she would have had it because your reference to the support group suggests she must previously have been found to have LCW and that she’s not failed a WCA since. (Any ir-ESA she had in Nov 2015 would almost certainly have ended due to the loss of PIP rather than due to failing a WCA).
Nevertheless, the fact remains that the most her credits demonstrate is that each day at present “would have been” a day of LCW. In other words, she “would have had” LCW. Whereas for para (ea) of Reg 56(2) a claimant needs to show that s/he actually “has or is treated as having” LCW. The only way you can ever have or be treated as having LCW is if you come under Part 1 Welfare Reform Act 2007, ie you are entitled to ESA proper. For similar reasons, a person awarded “credits-only” can never be in a period of limited capability for work (pLCW) as the definition of the latter found in Reg 2 ESA Regs requires them to have or be treated as having LCW. At best, they would have had or would have been treated as having LCW. That’s not enough for a pLCW nor for para (ea) of Reg 56(2).
[ Edited: 15 Jan 2016 at 01:25 pm by Tom H ]I must admit I have always considered “credits only” to mean that a person has LCW without being entitled to ESA. So this thread has taken me by surprise. Where does it say that entitlement to ESA is a condition of having LCW - I thought it was the other way round? In the 2007 Act it says that entitlement to ESA requires the claimant to have LCW, and I suppose you are only going to be assessed as LCW in the first place if you make a claim for ESA or UC, but does it follow that your LCW status only remains “live” if the claim results in an award of ESA or UC? I thought you could end up not being entitled to ESA (fail means test, no conts) but still derive spin-off benefits from having LCW, in particular claiming HB as a student.
..Where does it say that entitlement to ESA is a condition of having LCW - I thought it was the other way round? In the 2007 Act it says that entitlement to ESA requires the claimant to have LCW, and I suppose you are only going to be assessed as LCW in the first place if you make a claim for ESA or UC, but does it follow that your LCW status only remains “live” if the claim results in an award of ESA or UC?..
It is also the other way round, obviously. But it’s implicit I’d say in Part 1 WRA 07 that having LCW is relevant to ESA entitlement only. Obviously, the limited capability for work assessment is applied, like the personal capability assessment before it, to all areas of the social security system except those expressly excluded. So it’s obviously relevant in that sense to whether credits are awarded. But I don’t think it alters the fact that you still cannot be classed as having LCW if you have credits-only. It’s implicit in Reg 8B of the Credits Regs which I set out in my last post given the distinction it makes between a day of LCW under Part 1 and a day that would have been under Part 1 [had you met the contrib conditions].
The rules on linking pLCWs in ESA would hardly ever prevent linking were it possible to continue with a pLCW during a credits-only award. And it is settled practice that you cannot remain in a pLCW whilst on credits.
I also notice para 21 of Sch 3 to the HB Regs makes a distinction when allocating a component in the HB applicable amount between those who are entitled to ESA and those who would have been entitled. I think Reg 56(2) would need to make a similar distinction before those students on credits-only could rely on it. And, have to say, the vast majority of disabled students without any entitlement to Pip would otherwise almost always be able to rely on para (ea) which would make the other provisions of Reg 56(2) almost redundant.
It might be the case that your understanding of how LCW is treated under Reg 56 is the established practice. I don’t deal with enough students in my casework to be able to reliably comment on that. I’m just extending the rationale behind qualifying for a pLCW to what I see as a very similar provision (56(2)(ea)) in HB.
It is also the other way round, obviously. But it’s implicit I’d say in Part 1 WRA 07 that having LCW is relevant to ESA entitlement only. Obviously, the limited capability for work assessment is applied, like the personal capability assessment before it, to all areas of the social security system except those expressly excluded. So it’s obviously relevant in that sense to whether credits are awarded. But I don’t think it alters the fact that you still cannot be classed as having LCW if you have credits-only.
I’m not sure I’m fully with you - if they don’t have LCW then how do credits-only cases qualify for their HB components ?
Thanks Tom, that is interesting
I can see how para 21(2) of HB Schedule 3 implies that the ESA assessment phase cannot end unless the claimant is actually entitled to ESA (although it doesn’t explicitly say this in the ESA regs themselves). But I am worried that this more or less deprives Reg 56(2)(ea) of any purpose. The only use for Reg 56(2)(ea) would be to allow a student to claim HB on an interim basis if their WCA is delayed by more than 196 days ... is that really all it is meant to achieve?
Head (ea) was inserted by SI 2008/1082 and the explanatory memorandum is silent about the policy. The HB Guidance Manual says nothing. Circulars on the web don;t go back that far. CPAG commentary has nothing to say about it either
Just to quickly say you can find some older HB circulars here.
OK, well there it is then: para 100 of Circular A11/2008 says the policy intention is for credits-only LCW students to be covered. That’s good enough for me
Jon, I agree the structure of para 21 of Sch 3 suggests that having LCW is independent of the issue of credits, with its 21(2) only being relevant to 21(1)(c) which is itself separated from the other two conditions of para (1) by the word “and”. However, I just think it’s bad drafting and that it compounds the problem rather than resolves it. Having LCW under para 21(1)(b) cannot be reconciled in my view with entitlement to credits under 8B(2)(a)(iv), ie the ground for credits specifically mentioned in para 21(2)(b), given that 21(2) is expressly concerned with someone who is not entitled to ESA and, therefore, whose award of credits under 21(2)(b) must be based on the fact that it would have been a day of LCW rather than an actual day of LCW for the purposes of Reg 8B(2)(a)(iv). That raises the question what is a day of LCW. That is not defined in the ESA legislation but it would appear the words “would have been such a day” would be otiose if those who don’t qualify for ESA nevertheless have LCW. A day of incapacity for work was defined in section 30C SSCBA 92 as a day on which a person is incapable of work which for me is a day when they were either entitled to IB or IS based on being incapable. I think there’s a case for saying 21(2) qualifies not just (1)(c) but (1)(b) as well.
Anorak, I think those on cb-ESA would be covered by (ea).
If the intention was to include students (I’ve not looked at the additional info but thanks for providing this Tim I’ll take a look) then I think (ea) could have been drafted better. I think HB Regs are at odds with ESA on when you have LCW as there’s no way of reconciling the settled position on pLCWs with the periods referred to in Reg 56(2)(ea). The latter envisages linking periods when you’re on credits-only which is a first. Not to mention a nightmare.
Edit: Anorak, thanks for wading through the circulars to find para 100. I think it interprets “treated as having LCW” in 56(2)(ea) as a reference to those claiming credits, ie they don’t have LCW so they must be treated as having it. Whereas, of course having and being treated as having LCW are distinct concepts in ESA legislation and have meaning completely separately to the issue of credits-only. The distinction is more properly in my view between (i) having or being treated as having LCW (for substantive ESA entitlement) and (ii) would have had or been treated as having (for credits only).
[ Edited: 15 Jan 2016 at 05:25 pm by Tom H ]Tom, She was receiving ESA but this was “stopped” and changed to a NI credits claim due to her student loan income. Another advice agency calculated her student loan and grant income and found that she is entitled to some ESA but I don’t know how they came to that as both the maintenance loan and grant are counted as income and even with the student loan disregards and EDP & SDP (PIP award) would still be less than her student income. So I need to have my facts correct on this before putting a MR one for the period when she was still on PIP.
Regarding her HB she was told by a benefit adviser that she was entitled only yesterday and I don’t know as yet how they came to that decision! I will check the HB guidance. I am totally confused now!!
..I am totally confused now!!
All part of the service:)
No, seriously, sorry if I’ve confused you. I recall that you disregard certain disability related loans/grants (although I’ve not checked whether that remains good law) so you might want to check that which could explain how the income falls below the HB applicable amount.
It’s also obviously good news re the HB for which you have the others to thank. I think the HB Reg is badly worded and confusing but there’s no escaping the policy intent was to allow students without DLA to still qualify after 28 wks on credits-only.
Thanks every one for your response. I was just trying to take it all in on a Friday afternoon ;( Hopefully HB will follow their own guidance.