Sorry this is a really basic question! Client has been told by another advice agency that she will have to claim ESA but I think she will still be able to claim IS. Just need a second opinion...

Client is currently on IS, getting carer premium as well as disability premium and severe disability premium due to her own health problems. She has an autistic child who has started full-time residential school, and Carers Allowance and DLA for child will stop shortly.

I am assuming that client will no longer be able to claim IS as a carer, but she will carry on getting it on incapacity grounds. So no need for an ESA claim.

Does this sound right? Many thanks.

I don't think so - the loophole to avoid an ESA claim in circumstances such as this was closed in Dec 09. The only way your client can stay on IS is if her claim was previously on the basis of incapacity and not as a carer - there could be some argument possible with the DWP, as it may be that she has been on IS for some time ,so establishing the original basis of her claim may be difficult due to lack of records etc. But it sounds like she never had PCA's whilst on IS, which would suggest that the DWP were treating her claim on the basis of a carer.

Fri 23-Apr-10 02:07 PM by nevip

I'm afraid I have to disagree. If she starts to send in sick notes while still entitled to IS (even where the period of incapacity for work begins after the introduction of ESA) then once she ceases to qualify for IS as a carer then the DWP can only terminate her entitlement to IS if she cannot retain entitlement on any other ground. Her IS would continue on grounds of being incapable of work. This is not a new claim for IS on grounds of disability.

See DMG Memo 30/0,9 which replace earlier guidance following the ‘discovery’ of an earlier commissioner’s decision that states that the DWP cannot supersede an IS awarding decision when the initial ground of entitlement is no longer satisfied without exploring whether entitlement can be made out on some other ground.

I agree with Paul.

She may need to claim ESA. New regulations were issued effective from 30 December 2009 (SI 3152/2009). These amended the prescribed categories of those who can get Income Support. One of these categories removed was a claim on the basis of being incapable of work.

There is protection for those who were claiming under these categories before 30 December 2009. She may be able to remain on IS if she can show that she was entitled as incapable for work before this date. I assume she was on DLA and was receiving the SDP with her IS prior to Dec 09, so the Decision Maker would have known about her disability.

See update to CPAG handbook from Welfare Rights Bulletin 214 p294.

The categories “incapable of work”, “disabled students”, etc, were indeed revoked. However, that revocation in para 1 of the amendment regs is subject to para 2 of those regs. Para 2, states that the prescribed categories of people revoked by para1 continue to have effect for those protected by the ESA transitional regs.

What happened was that The Welfare Reform Act 2007 introduced the term “existing award” and defined that term to include an award of Income Support on the ground of being incapable of work, disabled students, etc. Those entitled to an existing award were precluded from claiming ESA under the ESA transitional regs.

The ESA transitional regs then made provision for a new claim for Income Support on the ground of being incapable of work to be classed as a “claim on the ground of disability” and thus treated as a claim for ESA, unless one of the exemptions in para 2 applied.

The guidance in the DMG memo is clear. The entitlement to IS arising out of being incapable of work” (whenever the period of incapacity for work began) as a new ground being satisfied when another ceases is not “a claim on the ground of disability” but “an existing award” thus not allowing an entitlement to ESA.

Having now had time to read the amending regs again more closely I concede that Scott's view and the view expressed earlier look correct. Oh well!

So, thinkig further, because she has the dp and sdp it could be said that the SoS had information that before december 30, the appointed day, the SoS had information that the claimant could be classed as incapable of work. So all might not be lost after all. Game on!