IB to ESA migration - “incapacitated” for tax credit purposes?

Hi all,

I’m struggling to get an answer for this one and I’m hoping someone can help!

Client has been on IB contrib based for about 11 years. His wife works 16 hours per week. He has been through the migration process and failed the wca. He’s appealed and as far as I can see, he’ll continue to get contrib based ESA at the assessment phase rate while apepaling.

With the changes in the tax credit rules in April this year, they will not qualify for tax credits as his wife only works 16 hours. However, if he’s incapacitated, then her 16 hours of work will be enough. Looking at the definition of incapacittated though, I can’t see how he qualifies. None of the other criteria are satisfied, which means he needs to come within one of the following: (from page 1314 of CPAG, Reg 13(4) of the WTC (EMR) Regulations 2002)

- get short-term higher rate or long-term incapacity bene?t (IB); or

- have been getting contributory employment and support allowance (ESA) for at least 28 weeks or credits for limited capability for work following the end of the entitlement period of contributory ESA; or, provided you satis?ed the national insurance (NI) contribution conditions for contributory ESA, a combination of that and statutory sick pay for at least 28 weeks (the 28 weeks can have been in one period or in periods that can be linked together)

Anyone know if he can continue to be treated as incapacitated as it seems it’s only the move from IB to ESA which has prevented from coming within the above criteria. It would appear even if he had passed the WCA, he still wouldn’t have qualified under the above criteria until he’d been getting contrib ESA for 28 weeks. Doesn’t seem right and I’m hoping I’m just missing something obvious which solves all this!

Cheers for any help.

Based on the information given, I don’t think you client and his wife can qualify for the disability element of WTC.

I recently had a similar query (see rightsnet http://www.rightsnet.org.uk/forums/viewthread/2999) where Victoria helpfully set out the legal test for entitlement as;

“In a couple you can’t have one person getting the qualifying benefit and the other working the 16 hours. The worker (working at least 16 hours) must be the person who is disabled. If both people meet all 3 criteria two disability elements can be awarded…. HMRC have always taken that approach, and it was challenged at Tribunal. See the case here: http://www.revenuebenefits.org.uk/pdf/CSTC_76_2006.pdf “

i don’t think this is a query about the disability element - is it about a couple with children still qualifying for WTC if one only works 16 hrs?

aren’t they still treated as satisfying the contribution conditions for ESA (c)? or else they wouldn’t be getting paid it

<edit>

Sorry, I’ve re-read it properly, I don’t think that is enough in itself…

Sorry, I maybe wasn’t as clear as I should have been in the first post!

Seand is right as the issue us about a couple with children still qualifying for WTC if one only works 16 hrs. The couple are responsible for a child and the new rules would require them to work at least 24 hours to be entitled to WTC. But one of the exceptions to this is if one member of the couple is incapacitated. The definitions I set out in the my first post are the only ones possibly relevant to this family. But he’s not on IB any more and does not seem to come within the other criteria relating to cESA either. This doesn’t seem right as it’s only the migration process which has prevented him from being seen as incapacitated. And as I said, even if he had passed the WCA, it seems he’d still have to wait 28 weeks before he would be incapacitated again under those regs.

I’m hoping there’s an easy answer somewhere, maybe time spent on IB prior to migration counts towards the 28 week period or something similar. But I haven’t found anything that seems to help them.

Altered Chaos - 09 May 2012 08:10 PM

Based on the information given, I don’t think you client and his wife can qualify for the disability element of WTC.

I recently had a similar query (see rightsnet http://www.rightsnet.org.uk/forums/viewthread/2999) where Victoria helpfully set out the legal test for entitlement as;

“In a couple you can’t have one person getting the qualifying benefit and the other working the 16 hours. The worker (working at least 16 hours) must be the person who is disabled. If both people meet all 3 criteria two disability elements can be awarded…. HMRC have always taken that approach, and it was challenged at Tribunal. See the case here: http://www.revenuebenefits.org.uk/pdf/CSTC_76_2006.pdf “

Just for clarification - its not the disability route for WTC that is being sought?

In this case its the couple with children and 16hrs worked, where the partner is incapacitated route. Here, you can get one person getting the sickness/disability benefit and the other working 16 hours, I think, because you have to satisfy the incapacity test for the childcare element, not the disability element route…..?

But I’d agree with OP that there does appear to be a gap in the sitution where someone transferred from IB to ESA will not get qualification until ESA has been paid (not during appeal either) for 28weeks.

Could he be treated as incapacitated via 13(6)(h) ? - it looks like you can link the period on ESA(C) to his time on IB (so he won’t have to wait 28 weeks); so she should meet the remunerative work test despite working under 24 hours.

———————————————————————————-

13(6) The circumstances specified in this paragraph are where there is payable or – in the case of a credit – an entitlement in respect of him one or more of the following
...
(h) contributory employment and support allowance or a limited capability for work credit, where entitlement to that allowance or credit or statutory sick pay **or a benefit or allowance mentioned in sub-paragraph (a) or (b) or (d)**, has existed for a period of 28 weeks comprising one continuous period or two or more periods which are linked together provided that, if the person received statutory sick pay, the person satisfied the first and second contribution conditions set out in paragraphs 1 and 2 of Schedule 1 to the Welfare Reform Act.

———————————————————————————-

Subparas (a),(b) and (d) refer to IB(ST Higher), IB(LT) and SDA respectively.

I doesn’t look like the April 12 insertion of **or a benefit or allowance mentioned in sub-paragraph (a) or (b) or (d)** is reflected yet in the guidance at TCTM02620 so you might need to push.

Brilliant Jon, that looks like the answer! Problem was I working with the sweet and maxwell social security legislation books which don’t have the April 2012 amendments in them. Rather remiss of me not to check the most up to date version but at least I have the answer now! Thank you very much.