ESA linking rules

My client failed an IB/cESA conversion assessment in May 2012 after being on IB for over 20 years. He appealed and a tribunal which sat in June 2013 upheld the original decision. My client had received cESA at the assessment phase rate for 52 weeks while waiting for the appeal to be heard. Those payments ended just before the hearing. He is not eligible on capital grounds for irESA. My client made a new claim for ESA immediately after the hearing mainly to protect his NI record. He has just been notified that he has been placed in the Support Group on his new claim but that he cannot be awarded cESA because he does not satisfy the NI conditions in the tax years ending April 2011 and 2012. 

My client made his new claim within 12 weeks of both the final NI credits and the final ESA payments that were made on his previous award. Doesn’t this mean that the two claims link and the question of his eligibility for cESA depends on his NI record in the same two tax years as his previous IB claim (when it was plainly adequate for him to qualify for benefit) rather the last two complete tax years preceding his new claim (when it wasn’t)? And having now been placed in the Support Group, doesn’t this mean that he should now be paid benefit?

my opinion is yes they do link.  I am assuming he also claimed under a new condition or a deterioration as he reclaimed within six months.

not 100% on this though and others may disagree.

Let me recap. Your client claimed IB. 20 years later, he failed conversion to cESA, which was confirmed by a tribunal. Therefore, from the date of the conversion decision, he was no longer entitled to cESA. The money paid pending appeal is not money ultimately due to him, but DWP doesn’t ask for it back when you fail at the tribunal hearing.

Therefore, because there has been a break in the claim (from the date of notification), any subsequent deterioration and placement in the support group is irrelevant to payment as it’s subject of a new claim.

If he has been successfully converted and placed in WRAG, which then expired after one year, then became entitled to the support component, it would go into payment, as in this case there was no break in the claim.

This is my understanding of the rules, although i’d love to be wrong in this case.

My reading of the linking rules is that they relate to periods of limited capability for work and that during the period that claimants receive assessment-phase rate ESA pending an appeal they are treated as having limited capability for work (CPAG p1053). So I suppose the question is whether the linking rules also apply to periods when claimants are treated as having limited capability for work.

Read point 6 on CPAG p.1054 - on failure at appeal, DWP reverses the decision to treat you as having LCW pending appeal.

CPAG could be clearer on the point but the award of ESA pending appeal is stopped only from the first day of the benefit week following the date that the DWP receive the tribunal’s decision.  And it’s stopped by supersession (normally on grounds of change of circs - ie he’s treated as not having LCW due to losing his tribunal - see Reg 147A(5)).  However, in the present case the ESA pending appeal had, crucially, already been ended by supersession due to a separate change of circs, ie he’d had 365 days of it before the tribunal even sat.  Had the DM been able to treat the claimant as not having LCW above, it would have had implications for his ability in future to get back on ESA, in particular his ability to rely on section 1B WRA 2007 (see below).  As his ESA pending appeal had already stopped then Reg 147A did not apply (ie, 147A(5)(a) makes clear that the person still has to be “entitled” to ESA pending appeal at the point the tribunal dismisses the appeal).

The upshot is that the ESA pending appeal was an award of contributory ESA which was time limited in the normal way.  Even though the tribunal subsequently dismissed his appeal against the conversion decision, there is no legal basis for revising the decision to award ESA pending appeal.  It would have been different if he’d won his appeal in which case the award of ESA pending appeal is then revised.

Section 1A WRA 2007 as amended provides this:

” (1) The period for which a person is entitled to a contributory allowance
shall not exceed, in the aggregate, the relevant maximum number of days in any
period for which his entitlement is established by virtue of the Employment and
Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)
(Existing Awards) (No. 2) Regulations 2010.” (emphasis added)

And the relevant maximum number of days is, of course, 365.

Section 1B WRA 2007 then goes on to provide this:

“(1) Where a person’s entitlement to an employment and support allowance has ceased as a result of section 1A (1).. 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 seems that the claimant continued to have LCW in the brief period between his award being time-limited and his making a new claim (if that period is not covered by sick notes already supplied then it would be wise to provide one to DWP immediately).  He would, therefore, come within section 1B above provided his award of ESA pending appeal was “established” by the ESA (TP) Regs referred to in section 1A above. 

His ESA pending appeal was contributory as a result of Reg 147A(1A) ESA Regs 2008 as amended by the ESA(TP) Regs.  I think that makes it established by the latter regs.  Consequently his new claim should be successful and he should be awarded contributory ESA on the basis of section 1B above.  I’d ask for mandatory recon. then appeal.