return to old style ESA is it possible ???

My client was on ESA . assume its old style as she is not on UC and got ESA form around 2018. she gets support group element contribution based only. she started work over 16 hours in 2021 and DWP did not know about her work until recently , client says she told ESA at the time but that’s another issue !!!so she has a letter informing her she cannot get ESA from 2021 , received the letter last week, as she worked over 16 hours,
BUT my question is can she simply give up her work and go back onto ESA without a break, there will be an overpayment for sure and she may be reassessed , but can she stay on old style ESA if she wants to ???
client is married and husband works UC is not an option at present
thanks for you help on this

The way i read it is she may be able to claim NSESA if (and only if) she has met the contribution conditions for previous 2 years. I think her old claim is dead in the water : its a legacy benefit and it has been rightfully terminated. 

There is an argument that she can pay her own NI contributions retrospectively to allow her to qualify for the benefit?

thanks Bensad, but has old style actually stopped, she was working and so not entitled but does that mean her claim has ended or is it just that she lost entitlement while she was working ???
we are not really looking at ns esa at this time , its the old style we want to keep !!!

Why would your client be entitled to income-related ESA even if she were able to stay on old-style? You say that there’s no point looking at UC because her husband is in work - why would that not also result in her being excluded from irESA given that (a) a partner in remunerative work will exclude her from it and (b) its all means tested in any event?

In any case, the answer is that if a decision is correctly made to end your old-style entitlement then that is the end of it. You would need to make a new claim to get back onto ESA and obviously a claim now would be for ‘new-style’ contributory-only ESA.

Usually what needs to be considered in the permitted work cases is whether the claimant was actually in work exceeding the limits on the date on which the decision was made. In some cases the claimant is not in fact exceeding the permitted work limits as at the decision date - even if they were doing so in the past - and it is therefore possible to deal with the case by way of a closed period supersession without ending their ongoing entitlement.

However nothing you have said suggests that the client’s ESA was terminated anything other than correctly and there doesn’t appear to be anything to suggest that she would have an irESA entitlement even if her old-style ESA were to be reinstated.

It just seems that we are stabbing in the dark on the basis that it would be nice if she could somehow establish an entitlement.

Elliot - I’m guessing that the o/p might mean the client was getting C-ESA rather than IR-ESA? I’ll also take a stab in the dark and guess she might be thinking about ‘closed period supersession’ type scenarios where the conditions of entitlement were not met for a period (e.g. because a claimant is ‘treated as’ not having LCFW for a period due to their work) but that doesn’t end entitlement. But if that is what the o/p was getting at, as you’ve already indicated, that isn’t going to work - benefit has been correctly terminated because she is working now - so it makes no difference if she now decides to stop work.

The closed period supersession thing only works where the conditions of entitlement were not met for a past period and that has only later come to light - i.e. at the time the decision is actually being made, the conditions of entitlement are met.

thanks all, the one issue I am looking at, please forget UC and ns esa etc is , has her claim been terminated , her letter says we cannot pay you because you have been working over 16 hours, is that a termination of her current old style esa award or is it saying we cannot pay you during the period you worked or indeed are working, is it a termination or is it something else . that’s it really, a simple point ,
thanks again, if you can pinpoint ant rules that show its a terminated award it would be usefuul

The effect of the decision is that she no longer meets the conditions for entitlement to ESA and therefore the decision ends her entitlement. That is the end of it. There is no question of her going back to old-style ESA unless the decision can be overturned.

Wot Elliot said.

Plus “we cannot pay you” is standard DWP speak for “you are not entitled/your claim is terminated”.

Further, on the basis of what you’ve said, I can’t see any prospect of a successful challenge. A claimant who works is treated as not entitled to ESA - reg. 40 ESA Regs 2008. There are exceptions to that reg. where the work is as a councillor etc. or under reg. 45 (exempt or permitted work) - but from what you’ve said those exemptions cannot apply.

It’s another of those unfortunate cases where the claimant would have been far better seeking advice before embarking on a particular course of action, rather than obtaining it only at the point where it’s all gone belly-up.

Ok this seems to answer my specific question, thanks or the contributions

The Employment and Support Allowance Regulations 2013
Claimants who are treated as not entitled to any allowance at all by reason of regulation 37(1) are to be treated as not having limited capability for work
38.—(1) Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 37(1), the claimant is to be treated as not having limited capability for work.

(2) Paragraph (1) applies even if—

(a)it has been determined that the claimant has or is to be treated as having, under any of regulations 16 (certain claimants to be treated as having limited capability for work), 21 (hospital in-patients), 22 (claimants undergoing certain treatment) and 25 (exceptional circumstances), limited capability for work; or
(b)the claimant meets the conditions set out in regulation 26(2) for being treated as having limited capability for work until a determination is made in accordance with the limited capability for work assessment.