Cannot move to IBESA from CBESA in a full live service area - affect on DWP IBESA backdating trawl exercise?

Hi,

This relates to an earlier posting - Cannot move to IBESA from CBESA in a full live service area?

https://www.rightsnet.org.uk/forums/viewthread/12825/#59561

The client in question was in receipt of CBESA made an ESA(3) request for a IBESA top-up.

The DWP are refusing to award her IBESA as her ESA(3) request was made only after her area went full UC live service UC. As IBESA no longer exists in her area then in effect she is on New Style ESA and cannot access IBESA as it doesn’t exist.

Section 33 of the Welfare Reform Act 2012 provides for such abolishing of IBESA -
http://www.legislation.gov.uk/ukpga/2012/5/section/33/enacted 

The DWP’s interpretation seems to run contrary to its acceptance of ESA as ‘one benefit’.

And which is the premise of its case trawl to see if those on IBESA should have been originally awarded IBESA or at later point if their income/savings circumstances changed.

Is the DWP right to refuse to award IBESA in this case?

If the client had been trawled would she only be given IBESA up until her area went full live service?

Should the DWP at least consider if she were entitled to IBESA before her area went full live service?

I think the point is to determine which type of ESA she is on now. There is no ‘migration’ from CBESA to New Style ESA, you can’t ‘in effect’ be on new style ESA. The facts of her claim must show whether she is getting CBESA or new style ESA and that determines whether IRESA can be added to her award or not.

Hi,

The client was on CBESA before her area went live UC.

I agree that she cannot then be on New Style ESA.

But the other issues raised remain.

For example, as IBESA has been abolished in her area can she still be awarded it on top of her CBESA?

IBESA hasn’t been scrapped it is just not available for new claims. ESA is one claim therefore a request for IB to be considered is a change in circs not a new claim and as such I believe it should be allowed. However is the client requires help with Housing Costs and there is no HB in payment at the moment then I believe that UC claim will be required

The explanatory note to s33 says “Abolition will happen once all claimants have been transferred to universal credit, with the exception of council tax benefit, which will be abolished in favour of localised schemes from April 2013”

In the meantime, although there are regs preventing certain new claims, those other legacy benefits can still exist. So for example, child tax credit and working tax credit will also be abolished by the same section, but that does not prevent someone now in a full service area who is getting CTC, from adding WTC to their tax credit award. The explanation from DWP partnership managers that I quoted in the thread you linked, makes the same point about ESA: If someone is on old-style ESA(C), which exhausts, then you return an ESA3 and get income-related ESA, even if your area has gone full service in the meantime.