Forum Home → Discussion → Work capability issues and ESA → Thread
Support group requests.
The answer to my query is probably staring me in the face, however its friday morning and my head hurts!
My query is regarding clients who wish to be put into the Support group of ESA. I know if a client has been migrated from IS/IB/SDA to ESA we can appeal within a month if client has been put into WRAG instead of SG. If a client requests to be placed into the SG a month after the determination to place them in the WRAG can anyone advise me of the best way to proceed?
Thanks guys and gals, as always.
supersession or late appeal depending on circs?
Just to add to the topic, I have lots of clients who I have inherited who are alrady in WRAG and have been for some time, I know due to their circumstances in April this will stop. If I cannot evidence a deterioration I cannot ask for a supercession, so should I be advising the clients I know this will affect, (who may qualify) to request a late appeal of the decision to place them in the WRAG now.
However in April when we are overrun with clients who want to be in the support group what can we actually do with them, presumably they will have exceeded the 12 month max appeal time frame. Will there be a further right of appeal given at that time ? Or will they have to wait 6 months and reclaim?
Any thoughts?
Hi,
We’ve had an increase too, I think it’s also linked to people being put on the work programme, and not being able to cope with that.
My understanding (but I am unsure about this) is that after April a person whose cont based entitlement stopped due to time limiting can reclaim ESA at any point, but then could not get any cont based ESA whilst in the assessment phase (becuase they have ‘used up’ their 12 months) and the benefit could begin again if placed in the support group after the assessment phase.
But the 12 week linking rule would prevent this – by the time the assessment phase is over you are too late to link to your previous cont based claim.
So should everyone submit a supersession request / appeal before their 12 months is up as their only chance to get back onto cont based ESA?
(Regarding the 6 month rule – my understanding is that firstly the 6 month rule only applies to people who are found to not have limited ability to work (not to people who are kicked off ESA due to the time limiting) and secondly the 6 month rule doesn’t prevent you from reclaiming ESA, it just means that they can refuse to pay the ESA whilst you are in the assessment phase.)
See this earlier thread:
http://www.rightsnet.org.uk/forums/viewthread/1857/
As I argued there I don’t think either the six month or twelve week rules have any effect here because cessation of payment of CESA after 12 months ends neither the claim nor the period of limited capability for work (so there is no question of having to ‘link’ such periods). Your claim just becomes a ‘credits only’ one.
What restricts renewing entitlement to payability of CESA are the contribution conditions - details in earlier thread.
So after April 2012 people who believe they should move into the support group can apply for supersession at any time, provided they have maintained their credits only claim, and be paid CESA again from the date they are accepted into the support group. Unless they are in time for a late review or appeal, they will have to show grounds for supersession - either change in circumstances OR error of law/ignorance or error as to material fact in the decision putting them in the WRAG.
Richard Atkinson
... Will there be a further right of appeal given at that time ? Or will they have to wait 6 months and reclaim?...
I haven’t looked at the law to which Richard refered in the other thread. However, I agree that the entitlement should just be demoted to one of credits only. In order to effect such demotion, however, there would surely have to be a supersession based upon a change of circs, ie change of law. That supersession should be appealable in the normal way allowing a tribunal to consider all of the conditions of entitlement at the date the supersession was made, ie not just restricting itself to whether the person had been on ESA for more than 12 months. So you could argue that there was no ground to supersede because the person should be in support group at the date of decision. Whether in those circumstances, you’d additionally have to show that you’d got worse, ie your own change of circs, is perhaps a moot point but I don’t think you would have to.
[ Edited: 25 Nov 2011 at 09:21 pm by Tom H ]Thanks, that’s useful. I hadn’t appreciated that the claims would be superseded to credit only.
...So after April 2012 people who believe they should move into the support group can apply for supersession at any time, provided they have maintained their credits only claim, and be paid CESA again from the date they are accepted into the support group…..
Hi Richard
I’m not sure if that statement’s correct.
I do agree that a person’s entitlement to CESA would, after 365 days, be demoted to “credits only” if they couldn’t get into the support group. The basis of the resulting “credits only” award would be Regs 8B(1) and (2)(a)(iv) of the Credits Regs 1975 (see pages 482-3 of volume 1, 2011/12 ed) subject, as ever, to Reg 3(1)(c) of those regs.
Despite Reg 8B, above, deriving from section 22(5) SSCBA 92, which is under Part 2 of that Act, a credit does not appear to be a “relevant benefit” as defined by section 8(3) SSA 98 for the purposes of Section 8(1)(a) SSA.
However, section 22(5) SSCBA above is a “relevant enactment” as defined by section 8(4) SSA. Therefore, decisions about credits certainly fall within section 8(1)(c) SSA and are, furthermore, not excluded by section 8(5) SSA. As such they may be superseded under section 10(1)(a) SSA.
For example, I am awarded 48 weeks of credits in a tax year for the purpose of the second contribution condition for CESA. Some time later, I successfully apply for a further 2 weeks’ credits for that same tax year. As a result, the DM supersedes his above decision on the basis of, say, a change of circumstances, and awards me 50 weeks’ credits.
However, as I’m sure you’re aware, it is settled caselaw that a decision can be superseded based on a change of circs only where there is an award to supersede (see commentary to Reg 6 D&A Regs at page 540 of volume 3, 2011/12 ed). A decision that a claimant is not entitled to benefit at all may not be superseded on the ground of change of circs.
You are suggesting that an award of credits may be superseded to produce a substantive award of ESA. A continuing award of credits based upon having limited capability for work does not, in my view, alter the fact that you no longer have any substantive award of ESA once you lose it on/after April 2012 due to the time-limiting provisions. As such, you would not be able to apply for a supersession to restore CESA should your condition subsequently worsen to the extent that you might now qualify for the support group, or to restore IRESA should you subsequently come within the means-test. Instead you would have to make a new ESA claim.
Further support for this argument comes from the wording of Reg 8B(2)(a)(iv) of the Credits Regs, mentioned earlier:
“(2)…this regulation applies to-
(a) a week in which, …each of the days-
(iv) was a day of limited capability for work for the purposes of Part 1 of the
Welfare Reform Act … or would have been such a day had the person concerned been entitled to an employment and support allowance by virtue of section 1(2)(a) of the Welfare Reform Act; …”
In other words, a person may qualify for credits even where they do not have any award of CESA under section 1(2)(a) of the WRA, provided they “would have” met the rules, eg limited capability for work.
Now, admittedly, under clause 51 of the Welfare Reform Bill, which you have kindly brought to our attention via your earlier thread, it will be the new section 1A of the Welfare Reform Act which precludes entitlement to CESA rather than section 1(2)(a) as per Reg 8B(2)(a)(iv) above, but the principle is the same: entitlement to credits based upon having limited capability for work is not the same as entitlement proper to CESA.
Further, Reg 3(1) of the Credits Regs provides:
“(1) Any contributions…credited in accordance with these Regulations shall be only for the purpose of enabling the person concerned to satisfy-
...
(c) in relation to a contributory employment and support allowance, the condition specified in paragraph 2(1) of Schedule 1 to the Welfare Reform Act” [the second contribution condition]
In other words, not for the purpose of allowing the person to remain entitled to ESA once they no longer meet the other conditions of entitlement for either CESA or IRESA.
I could be wrong. But if I’m right then you may have to make a new ESA claim (asserting that you qualify for the support group) within 12 weeks of your losing your CESA due to time limiting. Otherwise, you risk the unfortunate scenario of being found eligible for the support group but not satisfying the contribution conditions. However, Jane may be right about the two periods of limited capability for work not linking even where the new claim is made within 12 weeks. There just isn’t enough detail in the new law available to decide. At present, he would be paid the WRAC on a linked claim where he’d had the WRAC in the old award and the latter award had not ended on grounds of failing the WCA (see CE/52/2011).
However, it may be advantageous to let the CESA that ceases under time limiting to be broken by waiting more than 12 weeks in any event. Richard, I’ll try to post in your other thread on this.
Hi,
We’ve had an increase too, I think it’s also linked to people being put on the work programme, and not being able to cope with that.
My understanding (but I am unsure about this) is that after April a person whose cont based entitlement stopped due to time limiting can reclaim ESA at any point, but then could not get any cont based ESA whilst in the assessment phase (becuase they have ‘used up’ their 12 months) and the benefit could begin again if placed in the support group after the assessment phase.
But the 12 week linking rule would prevent this – by the time the assessment phase is over you are too late to link to your previous cont based claim.
So should everyone submit a supersession request / appeal before their 12 months is up as their only chance to get back onto cont based ESA?
(Regarding the 6 month rule – my understanding is that firstly the 6 month rule only applies to people who are found to not have limited ability to work (not to people who are kicked off ESA due to the time limiting) and secondly the 6 month rule doesn’t prevent you from reclaiming ESA, it just means that they can refuse to pay the ESA whilst you are in the assessment phase.)
We were told by DWP that people getting ESA (C) would not be referred to the work programme but could volunteer for it. Presumably due to the propsed 12 month limit. Is that wrong then - are they actually being referred?
Hi,
To clarify - I meant in general I’ve had quite a few enquiries regarding how to get into the support group because of people struggling with the work programme, not in particular from those on cont based.
I hadn’t noticed a difference between those on cont based and income related ESA being referred to the work programme. Most of our clients who are on cont based ESA qualified via the youth route and are not always aware of whether they are on cont based and/or income related.
Jane