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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Couple, one on NSESA, other on legacy ESA- income-related ESA entitlement?

CA Adviser
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Citizens Advice Calderdale, West Yorkshire

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Cl and his wife are both in receipt of contribution-based ESA with the support component. Cl is on New Style, claimed last year, his wife has been on cbESA for around 10 years. They are both in receipt of PIP, SR DL and ER mobility. No one claims CA in respect of them, and they have established underlying entitlement to CA. They live alone in a property owned outright with £15k in savings.
Am I correct in thinking that cl’s wife could ask ESA to assess entitlement to income-related ESA? With the SDP at the couple rate and two Carer’s premiums, they would have entitlement, even with the savings. There is no entitlement to UC on this income, so they have nothing to lose by trying, but would like to know for certain whether she is entitled to income-related ESA.

Thanks

Charles
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Accountant, Haffner Hoff Ltd, Manchester

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Yes, there is nothing stopping her asking for her ESA award to be superseded to include irESA.

CA Adviser
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Thanks Charles. Is there anything I can point to legislation-wise?

Charles
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It is difficult to prove a negative (ie, that there is nothing to stop her ESA being superseded to include an income-related element).
You could point to the fact that:
1. ESA is a single benefit (see for example para. 11-12 here), and therefore does not require a new claim, but simply a supersession.
2. All the various commencement orders abolishing irESA require the making of a claim for ESA (see for example Art. 4 here).

[ Edited: 6 Jul 2020 at 08:51 pm by Charles ]
Paul_Treloar_AgeUK
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There is Upper Tribunal decision in LH v Secretary of State for Work and Pensions (ESA) [2014] UKUT 480 (AAC)

The claimant appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. ESA was a single benefit and separate claims were not required for the contributory allowance and the income-related allowance; if one had been awarded then the other could be added on supersession, revision or appeal (paragraphs 11 to 12);

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Many thanks. CPAG Chap 2 p26-27