ESA reg 145(1) 12 week linking rule & retaining work-related activity component

Our local BDC have reinstated a claimant’s ESA after she started a job but could only manage 2 weeks due to ill health. She was previously receiving work-related activity component but the BDC are adamant she must now go back to assessment phase ESA pending another WCA. They are paying assessment phase ESA on the linked claim.

Can anyone confirm this approach is wrong, as I’m sure it is, and that she should be paid the work-related activity component on her linked claim? ESA reg 145(1) states .... ‘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’.

thanks! ... jim

I asked our local BDC to have another look at this and they are insisting that a claimant goes back down to the assessment phase when they make their linked claim. They e-mailed me the following

“When a claim to Employment and Support Allowance is made the first 3 days of that claim are called waiting days and are NOT payable, if however 2 claims are made within 84 days (12 weeks) of each other they will be treated as one continuous claim - this is ESA Reg 145 (1)

However this DOES NOT mean that previous assessed benefits paid on a previous claim that is less than 12 weeks ago will remain in payment if the customer make another application

directly lifted from ESA guidance :-
Where the customer has had a successful WCA on their previous claim and has been placed in either the Work Related Activity Group (WRAG) or the Support Group, they will be placed in the assessment phase on their new claim and will be paid the appropriate rate of ESA. A WCA will be undertaken in the usual way and, provided they are successful in this, the appropriate component rate will be awarded back to the start of their most recent claim.”

Is this correct?

No it isn’t.  CPAG and Disability Alliance don’t think so either.  Also see regs 5 and 7(1) of the ESA Regs.

We have a client in exactly this situation. On bereavement benefit with ESA top-up in WRAG until early December 2010, partner moved in and they made claim for IS as advised by JC+ as client became carer. Partner moved out early January 2011.  Client attended as all benefits had stopped as now single claimant again. Bereavement benefit put back in place quickly but ESA insist that client, even though claim made under linking rules, has to provide fit notes and go through whole assessment phase again.

We therefore have written to ESA and have had numerous telephone calls - decision makers now agree with our interpretation of ESA regs however they state that their guidelines “conflict” with this interpretation. They contacted their “policy decision team” for advice and received no reply. They have now contacted the “Adjudication and Constitutional Issues” dept(?) for their input. We await their reply.

Thank goodness for bereavement allowance as client has income - due to end soon though - hopefully this will be sorted by then.

Will keep you posted.

Hi Janeyanne,

not made any progress with my case I’m afraid. DWP refuse to budge (despite approaches from various angles) and we’ve now got an appeal in. As with your case their guidance says no. I’d be really grateful if you could let me know what response you get from “Adjudication and Constitutional Issues”.

DWP have now conceded the appeal and the claimant has been placed back in the support group from the start of her second (linked) ESA claim.

HI JimT

Finally heard from Decision Maker this week - Policy Team and ACI came back with list of regs which we don’t think are relevant but not agreeing that 145 (1) automatically puts our client back into the WRAG without the need to repeat the assessment phase.

We have now appealed this decision and sent up to our specialist support unit to fight.

Well done on getting it right for your client - we will keep plugging away.

This would make it analogous with the IB rules, where if your periods of incapacity link and you were in the long-term rate you go straight onto the long-term rate without having to start right back at the lower short-term rate.

Hi Janeyanne,

can you e-mail me so I can pass on some info     jim.thompsonATdunedincanmore.org.uk

Jim