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Moving into the support group after ESA-cb has already exhausted
Hi wonder if anyone can help me with this query.
Our local Jobcentre Plus office are istating that when a client has had ESA-cb which has exhausted after 365 days. but continues to have LCW with credits only. and is then moved into the support group because of deterioration when we request a supersession has to satisfy new qualifying contribution years if there has been a break of more than 12 weeks since the ESA-cb has exhausted.
We think this is wrong and that the client should have ESA-cb reinstated from the LCWRA date without having to requalify again.
Are we right as they are saying in their operation guidance it states that first consideration has to be given to whether the clients qualify based on contributions in the years prior to the supersession decision on LCWRA and if they have been on ESA/ICB for a number of years they are never going to qualify!
Thanks
Sue
Off the top of my head I think the JC may be correct, but only if the decision to put in the support group is effective from a date later than the 365th day of entitlement to C-ESA.
That’s because the time limiting decision is effective for those not in the SG when they exhaust their entitlement.
If the decision to put in SG is effective from a later date, it doesn’t change the fact that the client has already had 365 days of entitlement to CB-ESA and therefore the time limiting rule applies and there can be no C-ESA without a new claim and satisfaction of national insurance contribution conditions.
But if the supersession decision is effective from a point before the exhausting of entitlement, then the entitlement is not exhausted and C-ESA should be reinstated with arrears.
See this RN news item for the DMG memo and law: http://www.rightsnet.org.uk/news/story/changes-to-contributory-employment-and-support-allowance/
If there was a continuous period of limited capability for work would this not negate the need for a new claim and new contribution conditions? Would the relevant year not be the year the period of LCFW began?
The DM is referring to the following guidance from Chapter 41 of DMG:
“41856 Where the claimant’s health condition deteriorates, this can affect further entitlement to ESA (Cont). The action to take depends on whether an award of ESA (Cont) has already terminated before it is determined that the claimant has, or is treated as having, LCWRA. DMs are reminded that they should always firstly consider whether a claim could succeed because one of the tax years for the second contribution condition is later than those on which the earlier award was based, before consideration is given to a further award solely based on deterioration in their health.
Example
Amy’s entitlement to ESA(Cont) began on 22.2.11, and ended on 30.4.12, as her entitlement exceeded 365 days and she was not in the support group. Entitlement was based on tax years 2008/2009 and 2009/2010. She is not entitled to ESA (IR) as she has excess income from an occupational pension, but entitlement to NI credits continues. On 6.8.12 she makes a further claim for ESA(Cont) stating that her condition has deteriorated since her previous entitlement ended. The relevant tax years are 2009/2010 and 2010/2011, and Amy satisfies both the first and second contribution conditions, with a later tax year for the second contribution condition. The DM awards ESA (Cont) at the assessment phase rate from 9.8.12.
Following application of the WCA, the DM determines that Amy has LCW and LCWRA. The award is superseded to award the support component from week 14. The deterioration rule does not apply.”
The important word in that guidance is “before”, ie only check for entitlement under the deterioration route if the contributions conditions are NOT met. Your DM’s interpretation is: Do not even check for entitlement under the deterioration route IF the contribution conditions are not met.
Para 41856 above is wrong anyway in my view because there seems nothing in the law which gives priority to the contribution conditions route (section 1A WRA) over the deterioration route (section 1B WRA) when it comes to re-qualifying for CESA following time limiting. In fact, on my reading of the law I’d say the deterioration route takes priority. The reason the Dept prioritise Section 1A is that it saves them money: they pay the support component from day 1 of the new claim under section 1B but pay it only from week 14 of that new claim under section 1A. In the above example, Amy should be awarded the support component from 9.8.12.
By the way, it is a new claim in these circumstances not a supersession. Time limiting brings to an end the old award of CESA so a new ESA claim is necessary.
[ Edited: 14 Feb 2013 at 06:32 pm by Tom H ]If there was a continuous period of limited capability for work would this not negate the need for a new claim and new contribution conditions? Would the relevant year not be the year the period of LCFW began?
I’m talking about where so called deterioration occurs after 12 weeks. Only then is there potentially a choice between the deterioration and the contribution conditions routes over how to re-qualify for CESA. If less than 12 weeks then the contribution conditions route is not available (unless it’s a migration case).
It’s so-called deterioration in my view because the law doesn’t require the person to have deteriorated in order to qualify under section 1B. Yes, the claimant must get into the support group when he was previously only in the WRAG. But it does not follow that he has to show that he’s deteriorated in between those two decisions. Section 17(2) SSA effectively provides that one DM’s determination, eg that a person does not have LCWRA, cannot bind a future DM deciding the same matter, even if the facts have not changed. One tribunal may disagree with another on identical facts.
And once an award has been time limited it has ceased. Even if you re-apply for CESA one week later using the deterioration route and are successful (ie, you are placed in support group), there’s still a gap of one week. I’m not sure what you mean by continuous period of LCW. In this last example, the two periods of LCW would obviously link because they’re less than 12 weeks apart and the relevant contribution years for the new award would be the same as those used for the time-limited award. However, the deterioration route is an alternative to the contribution conditions so the same two tax years would not prevent a new CESA award in these circumstances.
[ Edited: 14 Feb 2013 at 06:51 pm by Tom H ]Hi Tony,
I mentioned that it’s a new claim not supersession because Sue had mentioned supersession. Yes, agree that supersession is needed if you try to get into support group BEFORE your contributory award is time limited. The disadvantage with supersession is that you’d need to show a change of circs, unless the DM sends you for a medical before deciding whether to supersede. Even after your CESA is time limited you retain, as we know, your LCW status but you still need to make a new claim for ESA in spite of that. I think we’re agreeing:)