I have a client who is claiming ESA having failed to pass the WCA and is appealing.

He gets MC, LM DLA also. His partner claims CA and their ESA takes account of this and gives them carer's premium.

It looks like they would be better off on IS - she as the carer claimant, as then they could get the disability premium.

If she claims, he cant continue to get his IBESA. But he would like to continue the appeal so he can get NI credits.

Can she claim IS without him withdrawing his ESA claim? If he has to withdraw, and is successful at appeal, will he get his NI credits still?

Confused.

I have a similar query (sorry if you thought this might be the answer to your question!).

Can a person simply say 'I don't want my ESA anymore, but please continue paying my national insurance credits due to my incapacity' as the couple in the case i'm handling would be better off on Income Support.

Notional income rules?

Notional income is a possibility...i'm thinking that the easiest way around this is for him to declare himself fit for work, get the Income Support in payment, then claim ESA again a little later (if the GP will provide the necessary evidence etc). The ESA claim would then lead to a credits only award.

If he is just claiming income based ESA, then he can give this up in order for his partner to claim IS.

If he was getting contributory ESA then notional income could be a problem.

Regarding the appeal - I think the appeal will be against the decision that he is not entitled to National Insurance credits for limited capability for work. If the appeal is successful he doesn’t have to then claim IB ESA, he could just have the credits and his partner claim IS.

Thanks for the replies - glad Im not the only one confused on this.

For clarification it is just IBESA he is claiming and appealing against.

Ive got a worry that if he stops his IBESA in order for partner to claim IS, then wins his appeal (Im sure some claimants do win!), the DWP will only enable payment of NI to the day he withdrew his claim.