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Widowed Parent’s Allowance - NI contribution conditions confusion - help!!!
Am a bit stumped here….. or maybe I’m correct and DWP obfuscation has got me doubting my own sanity…..
Scenario is that client’‘s husband died 2/8/2015. He came to the UK September 2004 and was in receipt of Income Support on the basis of incapacity since at least September 2005, but possibly earlier. ESA migration February 2012, initially in WRAG, but later revised to place in SG from 3/4/2012 - where he remained until he died.
Client’s application for bereavement benefits made in time, refusal decision 7/12/2015 on basis that contribution conditions not met. That refusal decision makes clear DWP did not look beyond first contribution condition and states contributor must actually have paid the requisite amount of Class 1, 2 or 3 contributions in any one year of their working life - i.e. (though by implication) no crediting of contributions possible to allow first condition to be met.
I didn’t do the MR but had a little input assisting a colleague with this - a quick look at CPAG 2015/2016 page 1004 tells us that;
The first condition is deemed to be satisfied if the contributor was receiving the support or work-related activity component of ESA (see p636 and p637) or long-term IB either:*
- in the year in which s/he died (if s/he died before reaching pension age) or in which s/he reached pension age; or
- in the preceding year.
* - there’s a reference that takes you to paras 5(6) and (6A) of Schedule 3 to the Social Security Contributions and Benefits Act at this point.
Now I didn’t actually check the Schedule at the point I was assisting my colleague with the MR - we were both pressed for time. But the MR decision has now come back and the department are insisting that it is only contribution-based ESA that counts for the purposes of deeming a contributor to have satisfied the first contribution condition. As my colleague is actually a debt worker, it’s over to me for the appeal…...and I’ve had to look at this in a bit more detail;
1. the references to p636 and p637 in CPAG are indeed both to C-ESA. But this might be of no real significance.
2. para 5 (6A) of Schedule 3 to the Social Security Contributions and Benefits Act does not appear in any of the copies of volume 1 of the Social Security Legislation we have in the office - these go back to 2010/2011. Para 5 (6) does appear - but this is the one that provides;
(6) The first condition shall be taken to be satisfied if the contributor concerned
was entitled to [1long-term incapacity benefit] at any time during–
(a) the year in which he attained pensionable age or died under that age, or
(b) the year immediately preceding that year.
and it’s the parallel provision for ESA that I need.
3. para 5(6A) does appear in the latest (30/11/2015) version of the Social Security Contributions and Benefits Act at legislation.gov.uk….
http://www.legislation.gov.uk/ukpga/1992/4
And para 5(6A) and (6B)provide;
[2(6A) The first condition shall be taken to be satisfied if the contributor concerned
was entitled to main phase employment and support allowance at any time during–
(a) the year in which he attained pensionable age or died under that age, or
(b) the year immediately preceding that year.
(6B) The reference in sub-paragraph (6A) to main phase employment and support
allowance is to an employment and support allowance in the case of which the
calculation of the amount payable in respect of the claimant includes an addition
under section 2(1)(b) or 4(2)(b) of the Welfare Reform Act 2007 (addition where
conditions of entitlement to support component or work-related activity component
satisfied].
The notes state that these provisions were introduced, effective 27/10/2008, by Sch. 3, para. 9(13) to the Welfare Reform Act 2007 (c. 5).
The reference in para (6B) to s. 4(2)(b) of the Welfare Reform Act 2007 is to income-related ESA, so all well and good.
4. And The Welfare Reform Act 2007 (Commencement No. 6 and Consequential Provisions) Order 2008 (http://www.legislation.gov.uk/uksi/2008/787/made) does give a 27/10/2008 commencement date of 27/10/2008 Sch. 3, para. 9(13) to the Welfare Reform Act 2007.
5. But the DMG does appear to indicate that only C-ESA can permit the ‘taken to be satisfied’ provision to be satisfied - that said, the latest update on that is June 2014 and it’s far from clear….
So have I gone mad? Any help very gratefully received…..
I’ve had a look and I’d certainly say that it’s worth arguing. As you note, the reference to sec.4(2)(b) of WRA 2007 is plainly related to ESA-IR. There is some added weight to the argument in that there is the separate reference to ESA-CB as well in sec.1(2)(b) which clearly entertains the notion that it’s both types of ESA that would qualify.
I did wonder whether it might have been to allow for people who were time limited on ESA-CB moving to ESA-IR but I can’t see that works as limiting didn’t start until 2011 or 2012. Give it a go and see what they say, good luck,.
I could be wrong but it appears to me that he may not have satisfied the second condition as the condition looks to only be satisfied by virtue of ESA in relation to the first condition and not the second, which is based on contribution paid which “produced an earnings factor of at least 52 ties that year’s lower earnings limit”.
Paul - thanks. The absence of para. 5(6A) from Sch 3 in any of the Volume 1 Sweet and Maxwells caused me to panic until I found the Commencement Order - it wouldn’t be the first time the legislation volumes haven’t been updated fully.
Mike - I’m not too worried about the second condition.;
1. He’ll have had NI credits by virtue of the IS on the basis of incapacity claim from 2005 - 2012 and then from 2012 -2015 on the basis of the ESA claim.
2. Length of working life was 29 years (he died just before 46th birthday) so we’re looking at 26 years for the second condition.
3. The reduced benefit provisions for insufficient contributions assist here - as there are credits for 10 years (possibly 11) he hits the 25% threshold for my client to receive a reduced award.
4. As she has children aged 6 and 9 and is due to enter employment at the end of the month (likely at a level of remuneration where she won’t receive HB) even the reduced award will be worth having…..
A quick update on this in case anyone else should run up against a similar scenario…..
1. Had it confirmed by one of the editors of the Social Security Legislation volumes (who is also a UT judge) that there had been oversight in updating Schedule 3 to the SSCBA from the date the changes were introduced - so my interpretation above correct.
2. DWP requested additional time from the FTT to respond to the appeal but has now folded - cl. entitled to £64 p/w WPA from date of claim. As she is now in work at a level of remuneration that kicks her out of HB entitlement and it will be some years before her youngest turns 16, this is a significant gain.
Not particularly bothered about blowing my own trumpet here - but DWP was so adamant that it was correct up to appeal stage, I strongly suspect it has made (and may yet make) the same decision in parallel cases, so worth sharing.
A quick update on this in case anyone else should run up against a similar scenario…..
1. Had it confirmed by one of the editors of the Social Security Legislation volumes (who is also a UT judge) that there had been oversight in updating Schedule 3 to the SSCBA from the date the changes were introduced - so my interpretation above correct.
2. DWP requested additional time from the FTT to respond to the appeal but has now folded - cl. entitled to £64 p/w WPA from date of claim. As she is now in work at a level of remuneration that kicks her out of HB entitlement and it will be some years before her youngest turns 16, this is a significant gain.
Not particularly bothered about blowing my own trumpet here - but DWP was so adamant that it was correct up to appeal stage, I strongly suspect it has made (and may yet make) the same decision in parallel cases, so worth sharing.
Good work, nice one.