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IRESA or UC?
Client was on CBESA + IRESA top up as in support group and no other money coming in.
After re-assessment she was placed in WRAG, benefit dropped to £102.00 CBESA and we have an appeal in.
Her 365 days is up in January so CBESA will stop
As I understand it although she is no longer in receipt of an income related top up since being placed in WRAG her claim is still structured as CB+IRESA claim
I called ESA and they confirmed same, its both.
I advised that as her claim was still part IRESA (despite it not currently in payment) they should just replace CBESA with IRESA pound for pound when her 365 days is up.
DWP have sent her a letter confirming her CBESA will end, and the letter (poor cut n paste job) states they cant pay IRESA as she has too much money coming in and too much savings. Client has no other money coming in and no savings.
She rang ESA to be told that because she is only getting paid CBESA and that there is no IRESA in payment she needs to claim UC. My understanding is UC need only be claimed if a new claim to a legacy benefit is needed. In my humble no new IRESA claim needed : its already in place
Thoughts?
The easiest way to look at ESA is to say ESA(c) is income for ESA(ir) purposes. That is not strictly the way the legislation is structured - the legislation contemplates a simultaneous assessment of both c- and ir- entitlement, but says that, if you qualify for both, the contribution based award trumps the income-related award and you only receive ESA(ir) to the extent that it exceeds the contribution based entitlement. When the contribution based entitlement falls away, there will no longer be anything to trump the ESA(ir) and it will become payable. It will not be necessary to make a further claim at that point.
When trying to get the DWP to put ir-ESA in payment I’ve sent a complaint and quoted:
LH v SSWP (ESA) [2014] UKUT 480 (AAC) reported as [2015] AACR 14
DJ v SSWP (ESA) [2015] UKUT 0342 (AAC) (for conversion claims) confirming that they’re one and the same with no new claim needed.
Also used DMG Vol 8 Chapter 41: ESA conditions of entitlement paragraph 41840. DWP changed their minds and awarded ir-ESA so long as an ESA3 was completed. Even sent a copy of CPAG page 26 to confirm it too.
Haven’t checked if there’s any more or recent sources to confirm ir-ESA can be paid on ‘old-style’ ESA claims, but I’ve had good results when the DWP have straight out refused to get ir-ESA in payment otherwise.
See link to an ESA3 below, website worth a tour too!
Another option is downloading the ESA3 change of circs form and completing asap with your client stating the obvious covered above and forwarding to the relevant BC. To minimise potential gaps in payments.
https://gmwrag.files.wordpress.com/2016/05/esa3.pdf
PS if you upload a anonymised version of the crude copy and paste DWP letter, it may get seen by people who can take it up with the DWP.
When the contribution based entitlement falls away, there will no longer be anything to trump the ESA(ir) and it will become payable. It will not be necessary to make a further claim at that point.
This. ESA should just carry on in payment. Requesting advance advice on situations like this from DWP is not usually a good idea as it is often just an invitation for the call centre operative to guess.
Incidentally, claiming UC would seem to be a valid option in these circumstances. ESA w/ WRAC is essentially equal to UC w/ LCWE but ESA w/ SC is less than UC w/ LCWRAE - so if your client claims UC now and then wins their appeal, they will be better off on the face of it. Obviously other issues to consider such as monthly payments, online claim and debt recovery issues.