getting back on old style esa

a long shot I fear BUT, my client was getting ESA up to 2019 or 2020 when it stopped, he has recently asked for a review as he has a live esa claim ongoing but no award of benefit, he was in basic group, he has been assessed and placed into support group, he has had a letter to say he can’t get income related, income too high and can’t   get contribution based as dwp used 2012/13 as his contribution years and he does not have sufficient NI.
I thought that if a claimant on basic esa who is later put into support group can ask for the previous award to be revised on change of circs or some other reason and get back onto esa.
I did do this with one client some years ago and he got back onto esa even though he had been off it for years, he got £8000 arrears.  Can my my current client do the same ???

It sounds like your client was on irESA only, although that is really just supposition. If the DWP are talking about failing the contributions conditions for 2012/13, that would also have been the case when the old style ESA claim was made. Also, the award would have been time limited to 1 year if he was on cESA and in the WRAG. I assume he was on irESA which then stopped due to increased income.

Although you are saying that your client has then continued to have “a live esa claim ongoing but no award of benefit”, this is not correct. When ESA stops being in paid, it is over. Although your client may have continued to receive NI credits for having LCW, this is not an ESA award. Confusingly, the DWP will refer to this as “credits only ESA” or similar, but this is just a reflection of the fact that the LCW credits are managed within the same computer system as ESA rather than the actual legal position. You can’t use the fact that you have been in receipt of LCW credits as a basis for resurrecting an old-style ESA entitlement.

Nonetheless, it sounds as though the DWP have considered resurrecting his entitlement in any event but have concluded that he doesn’t qualify for old-style ESA substantively. He doesn’t qualify for cESA because he doesn’t meet the contributions conditions and he doesn’t qualify for irESA because his income exceeds the applicable amount. So even if there were some mechanism to ‘reinstate’ his old style award, he would not qualify for it.

Are you saying that their assessment is wrong in some respect? I am just not really sure where you are going with it.

He has the option of claiming nsESA if he thinks that he would meet the contributions conditions now based on more recent tax years. He also has the option of claiming UC - note that the LCWRA assessment would mean that he would qualify for day one LCWRAE - it may even be that he would be better off on UC than he would have been if reinstating ESA were a possibility.

The only other alternative I can see is that if he was entitled to cESA (under the 2008 regs, or legacy version using DWP’s language) and that ended after 52 weeks as he only had LCW.

If he’s now been found to have LCWRA then I think he can be entitled to cESA again by sect 1B of the Welfare Reform Act 2007:

1BFurther entitlement after time-limiting
(1)Where a person’s entitlement to [F2a contributory allowance] [F2an employment and support allowance] has ceased as a result of section 1A (1) or (4) but—
(a)the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,
(b)the person satisfies the basic conditions, and
(c)the person has (or is treated as having) limited capability for work-related activity,the claimant is entitled to an employment and support allowance by virtue of this section.
(2)An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part.

It’s no longer possible to claim legacy ESA, but he should be able to claim new style ESA

Thanks for replies, I did get a client back onto esa after years of being off it after his 0ne year on the basic rate had ended, he was reassessed and put into support group and paid esa ongoing plus £8000 arrears, that was before welfare reform and ns esa etc. but I found these rules below which appear to give hope that I could do the same with my current client. who does not qualify for UC or any means tested benefits I just want him back on old esa

Application made after award has terminated !!!
V2062 Where
1.  entitlement to ESA, including under the youth provisions, has been terminated
as in V2010 or V2015 because it exceeded 365 days and
2.  the claimant
2.1   reports a deterioration in their health condition or
2.2   makes a further claim for ESA and
3.  the claimant had, or is treated as having had, LCW since the previous
entitlement ended and
4.  the claimant satisfies the basic conditions of entitlement (see ADM Chapter
U1) and
5.  the DM determines that the claimant has, or is treated as having, LCWRA
the claimant is entitled to an award of ESA, even though they do not satisfy the
contribution conditions1
. The award is regarded as an award of ESA for all other
purposes, for example amounts payable2
.
1 WR Act 07, s 1B(1); 2 s 1B(2)
Example
Bogdan’s award of ESA ended on 5.5.15 after 365 days. Entitlement was based on
tax years 2012/2013 and 2013/2014. He continues to have LCW for the purpose of
NI credits. Bogdan makes a further claim to ESA from 6.7.15 on the grounds that his
condition has deteriorated. As the PLCWs link, the tax years on which entitlement
could be based do not change. The claim cannot be decided until the DM
determines whether or not Bogdan has, or is treated as having, LCWRA.
Following application of the WCA, the DM determines that Bogdan has LCWRA. He
is entitled to ESA and the support component from 6.7.14. He does not have to
serve waiting days or the assessment phase.
V2063   Where the claimant reports a change in their condition other than by making a claim,
the DM should consider whether the contact satisfies the conditions for claiming
ESA1
(see ADM Chapter A2).

The rule you are referring to is about cases where an entitlement to contributory ESA ends due to time limiting. If your new client had a contributory entitlement which ended due to time limiting, they may now be able to reclaim contributory ESA following the LCWRA assessment.

(Whilst you seem very keen that he should be on old-style ESA, it doesn’t make any difference whether it is old or new style given that he has no income related entitlement)

The problem seems to be that your new client, unlike your old client, never had a contributory ESA entitlement and didn’t lose that entitlement due to time limiting. So pointing to the rule does not do him any good.

Clearly the most helpful thing you can be doing is trying to secure more specific information from your client about which type of ESA he was on, why it ended and what his record re the contribution conditions looks like.

Thank you Elliot. I have checked and it looks like my new client was on contribution based ESA and his one year entitlement due to him being in basic rate ESA, so in that case maybe we do have a chance to get him back onto old style esa !!!

Diogenes - 21 June 2022 11:36 AM

Thank you Elliot. I have checked and it looks like my new client was on contribution based ESA and his one year entitlement due to him being in basic rate ESA, so in that case maybe we do have a chance to get him back onto old style esa !!!

It makes it a little odd that the DWP are referring to him failing the contributions conditions in 2012/13, which presumably refers back to when he claimed; but who knows why the DWP do DWP things.

indeed Elliot, i will get client to lodge an MR against the refusal and see where we go from there

I have discovered that my client was on IB and transferred over to ESA so I am assuming his NI contribution elate back to his IB award