ESA reg 13

I have a client who claimed contribution based ESA this year (his partner works full time so income related ESA is not applicable) & was refused due to insufficient NI conts in 2007/08 (he worked in New Zealand for most of this tax year) - I am trying to establish if he ended his current ESA (NI credits only) claim & re-claimed ESA again in 2011 (after a gap of more than 12 weeks) would he then be entitled to ESA using 2008/09 & 2009/10 tax years which appear to be okay?
The nature of my clients illness/treatments & employment mean it is likely he’ll do some agency/fixed period contract work then be unemployed or too ill to work again while having treatment in the future.
Disability Alliance produced an ESA booklet in Oct’08 which suggests (on page 15) that the 104 week linking rules can be waived if they are to a claimant’s disadvantage but this paragraph is not repeated in subsequent DRH issues & I cannot find anything similar in CPAG or DMG.
I spoke to an ESA decision maker at the relevant Jobcentre Plus office but they were non-committal & suggested the client just reclaims in 2011 if he needs to, etc
ESA reg.13 seems to suggest the 104 week linking rules can be waived, referring also to regs 143 & 145 but I am reluctant to advise my client until I am sure - Can anyone advise?

I think that the 104 week linking period only applies where the claimant ceases his claim in order to move into work or training and does so within a month of closing his claim. It’s like the concept of the “welfare to work beneficiary” for incapacity benefit.
The purpose of this linking period is that it provides protection for a person with (epecially) a fluctuating or intermittent condition to try out work without having to go back to the beginning of the assessment procedure if it doesn’t work out - you pick up where you left off. If the reason for ceasing to claim is something else - such as trying to look for work and claiming jobseeker’s allowance, or going on maternity leave, or acting as a carer - then only the 12 week linking period applies. So the 12 week is the normal rule, and the 104 week only applies in special circumstances.

Do others agree?