Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

CESA, linking rule, etc.

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

Claimant was on CESA, Support Group.

Tries to go back to work - lasts 3 weeks, far too ill, but had worked 37.5 hours a week so well over PW level.

Asks to re-claim CESA but is told that the JC+ area went full service UC in the meantime - UC claim only taken.

By my reckoning, the linking rule for CESA should have been activated and she should have been back on CESA (SG) with no need for a new WCA.

Also - the linking rule would carry the claim to a date which fell some days prior to the introduction of FSUC in her area.

Does this also mean IRESA and not UC? 

Thoughts?

andrew_poole
forum member

birmingham tribunal unit, birmingham

Send message

Total Posts: 7

Joined: 20 October 2011

Hi Andrew,

I think you are right. The legislation seems unambiguous:

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2013
Linking period
86. Any period of limited capability for work which is separated from another such
period by not more than 12 weeks is to be treated as a continuation of the earlier
period.

Unless there is some UC legislation to counter this, then it is as if the period of work is ignored and the claimant is treated as having a continuous claim. If so, then no question of UC and status quo regained.

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

andrew_poole - 20 February 2018 04:54 PM

Hi Andrew,

I think you are right. The legislation seems unambiguous:

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2013
Linking period
86. Any period of limited capability for work which is separated from another such
period by not more than 12 weeks is to be treated as a continuation of the earlier
period.

Unless there is some UC legislation to counter this, then it is as if the period of work is ignored and the claimant is treated as having a continuous claim. If so, then no question of UC and status quo regained.

Hi - I can’t see anything in the Commencement/Modification Orders that would overrule the ESA Regs and I will go with the line that CESA ‘old style’ is payable as the date of claim carries back to before the UC Order kicked in, and as a consequence, legacy benefits are payable where appropriate, not UC.

I’d be glad to hear any counter-arguments.

 

Jon (CHDCA)
forum member

Welfare Benefits, Craven CAB, N Yorks

Send message

Total Posts: 1219

Joined: 16 June 2010

In a similar case, we concluded that 12-week linking back to old-style ESA can’t be relied upon to change the fact you’ve claimed UC in the interim. See case study here, bottom of page 14:

https://www.rightsnet.org.uk/forums/viewthread/12025/

This wasn’t my own case, and I don’t have the details to hand unfortunately. But the upshot was, as a I recall, no way to retrieve the SDP, or any other ir-ESA, once you’ve claimed UC.

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

Jon (CHDCA) - 21 February 2018 02:04 PM

In a similar case, we concluded that 12-week linking back to old-style ESA can’t be relied upon to change the fact you’ve claimed UC in the interim. See case study here, bottom of page 14:

https://www.rightsnet.org.uk/forums/viewthread/12025/

This wasn’t my own case, and I don’t have the details to hand unfortunately. But the upshot was, as a I recall, no way to retrieve the SDP, or any other ir-ESA, once you’ve claimed UC.

If any details come to light, please post. Being a stubborn so-and-so I will press on meanwhile.

Jon (CHDCA)
forum member

Welfare Benefits, Craven CAB, N Yorks

Send message

Total Posts: 1219

Joined: 16 June 2010

Andrew, tried sending you a PM but your rightsnet inbox is full. Got an email address I can use?

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

Jon (CHDCA) - 21 February 2018 05:21 PM

Andrew, tried sending you a PM but your rightsnet inbox is full. Got an email address I can use?

Hi Jon, I just did a tidy-up so the PM should work now - many thanks.

AD

Chrissum
forum member

WRAMAS, Bristol City Council

Send message

Total Posts: 140

Joined: 24 August 2017

Devil’s advocate time?
So just for the sake of my bear with a little brain status, are we saying that it is arguable that if an IR ESA claimant, who may be doing permitted work, tries full-time work but gives this up within the linking period, they have the option of returning to IR ESA rather than UC in a full service area?
My interpretation, and please feel free to shoot me down in flames, is that the linking period is a tool to ensure the WRAG or SG status is preserved rather than the entitlement to the benefit, hence the reference to period in the regs rather than claim. So in the circumstances above, I believe, a new claim is required because the previous claim has ended and if the commencement regs do not allow for a new claim for a legacy benefit to be made in that area a claim for UC is the only option, but the workgroup status will remain as there has been no decision to remove it. Of course as CB ESA still “exists”, linking can and should occur but I’m not convinced that an IR claim can be re-opened but am very willing to be so!
Is anyone aware of any cases that could prove this either way?

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 2353

Joined: 14 March 2014

I agree with you Chris - you can’t make a new claim for irESA once you are in a full service area (unless you have 3+ kids) and it would be a new claim - it only links to previous one - it isn’t a continuation of the previous one. However, you would be able to claim new style ESA if you had the contribution record but of course no top-up of ir ESA as new style ESA is contributory only

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

Interestingly, I am still awaiting a reply from DWP, more than two months after asking them.

Red Duke
forum member

Citizens Advice Southwark

Send message

Total Posts: 1

Joined: 26 July 2017

Did you ever get an answer from the DWP?

Andrew Dutton
forum member

Derbyshire Welfare Rights Service

Send message

Total Posts: 1512

Joined: 12 October 2012

Short answer - no.

I have made a formal complaint at their failure to respond - as you can see, the question is a month away from its first birthday - to which there has been…..

no response.

Y’know what, I don’t think they know…...