crESA and irESA - same benefit?

If a person who is in receipt of crESA has a change of circumstances and becomes entitled to irESA (as well) then is this:
(a) a change of circs which must be notified within 1 month to get the arrears due, or
(b) a new claim for irESA whcih can be backdated 3 months?

I have a client who notified the ESA office of scuh a change (partner’s earnings stopped) after about 2 months and arrears have been refused.  I had assumed that the (b) applied but now I am not sure.

Hi Victor,

My understanding is that when you claim ESA you are making a claim for both contributory and income-related ESA. If this is correct, then the situation you describe here is a change of circumstances, and the one month rule applies (assuming that becoming entitled to irESA is a change which is advantageous to the client).

One of my clients was in receipt of CBESA and came for advice 2 months after having been awarded DLA MRCC. He now qulaified for the SDP - ESA insisted he fill out a new claim for IRESA but then backdated his SDP (which would have been IRESA accoring to the DWP) fully for 2 months. So based on my own dealing with our ESA centre I would say that it would count as a new claim - although technically it was a change of circs (eg the award of DLA ) ESA could only deal with it thru a new claim for IRESA, giving full backdating rights!

Claims for ESA are not always both conts based and income related.
Our ESA BDC - Chippenham - seems to go through a range of initial questions to determine whether an IR claim is needed, if for example client has worked for last few years (paying NI) then they do not go through the lengthy IR claim information and therefore only process a conts based claim. This has led to problems when client has not actually made sufficient Ni conts and then has to reclaim IR ESA.
This doesn’t answer the original post however is worth bearing in mind.
Chaos

I think the Department are confusing two things.  My view is that ESA is one benefit with two components, like DLA.  Therefore, a ‘claim’ for the IR component is in law a supersession and the Department cannot treat it as a fresh claim.  Whether the Department requires a lengthy form to be completed is a different matter altogether and treating it as a new claim is a purely administrative matter reflecting the rigidity of its software.

The distinction is vital because a supersession would allow complete backdating under regs 6(2)(e) and 7(7) of the D&A Regs in a situation when the IR component was applied for more than three months after the qualifying benefit was awarded whereas if it was a fresh claim in the traditional sense the backdating is limited to a maximum of three months.

The language of section 1 of the Welfare Reform Act 2007 reflects this:

1.—(1) An allowance, to be known as an employment and support allowance, shall support allowance be payable in accordance with the provisions of this Part.
(2) Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either–

(a) the first and the second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in that Part of that Schedule (condition relating to youth), or

(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

(3) The basic conditions are that the claimant–

(a) has limited capability for work,

(b) is at least 16 years old,

(c) has not reached pensionable age,

(d) is in Great Britain,

(e) is not entitled to income support, and

(f) is not entitled to a jobseeker’s allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker’s allowance).

Thanks for this Nevip.  This is also my opinion now. 

While this is very helpful for someone who requests a supersession becasue they have been awarded a qualifying benfit such as DLA, it is of course unhelpful for my client who failed to inform the ESA office that his partners income had stopped.

nevip - 02 March 2011 01:04 PM

I think the Department are confusing two things.  My view is that ESA is one benefit with two components, like DLA.  Therefore, a ‘claim’ for the IR component is in law a supersession and the Department cannot treat it as a fresh claim.  Whether the Department requires a lengthy form to be completed is a different matter altogether and treating it as a new claim is a purely administrative matter reflecting the rigidity of its software.

The distinction is vital because a supersession would allow complete backdating under regs 6(2)(e) and 7(7) of the D&A Regs in a situation when the IR component was applied for more than three months after the qualifying benefit was awarded whereas if it was a fresh claim in the traditional sense the backdating is limited to a maximum of three months.

You are absolutely right of course and since reading your clear and concise response I have been feeling dim-witted - but that is nothing new where ESA is concerned, God help me when UC gets here!
Chaos