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

IB to ESA migration, 104 linking rules and Statutory Sick Pay

seand
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Welfare rights officer - Wheatley Homes

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I have a client who has been in hospital since 13/1/11. He is working but he is a welfare to work beneficiary within the 104 week linking rules (started work in June 09). This means that he is unable to be paid Statutory Sick Pay and should instead have been able to claim IB under the linking rules.

Unfortunately he was not referred to me until after 31/01/11 so he is now unable to claim IB: even though his claim could start on 13/1/11 he is unable to claim IB at all now (I’m reasonably sure that this is correct, but happy to be proved wrong)

I haven’t investigated properly but I think he may not meet the contribution requirements for ESA (c). His wife works so ESA (ir) is not an option.

is this correct? is he unable to get SSP, or IB or ESA?

loliver
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see regulation 2(2) of the ESA (transitional Provisions) regs SI2008/795. Sweet and Maxwell (Bonner) volume 1 page 1258.

Your service users claim for ESA should be treated as a claim for IB

AGodfrey
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Welfare Benefits Adviser, Money Advice Unit, Herts

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I think you’re right and that he might not be entitled to anything at all. Since they abolished the linking rules at the end of Jan he cannot go back onto IB and he probably doesn’t have enough contributions to get CESA - see my post: http://www.rightsnet.org.uk/forums/viewthread/1046/

A claimant can’t get SSP if they are a W2W beneficiary. Unfortunately I think your client is still a W2W beneficiary even though there is absolutely no benefit from being so. I’d probably stick in a claim for it anyway…

loliver
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Below i have (rather badly i suspect ) cut and pasted the appropriate regs from the Law volumes.

The link(ing rules) is to the original contribution conditions. 

The key point is in 2(2). What you say in your post would i suggest support the view that a claim for IB would be successful and a claim for ESA should be treated as a claim for IB

Claim for existing award
2.—(1) A claim for incapacity benefit, severe disablement allowance or income support on the grounds of disability, whenever made, in respect of a period which begins on or after the appointed day, is to be treated as a claim for an employment and support allowance.
(2) Paragraph (1) does not apply to–
(a) a claim made in respect of a period commencing before 31st January 2011for incapacity benefit or severe disablement allowance relating to a period of incapacity for work which is one of two periods treated as one period of incapacity for work under section 30C(1)(c) of the Contributions and Benefits Act (linking rules)(c);

((b) 1a claim made in respect of a period commencing before 31st January 2011made by a welfare to work beneficiary in accordance with regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995(a) (welfare to work beneficiary);

(c) 1a claim made in respect of a period commencing before 31st January 2011 for income support on the grounds of disability where–
(i) the claimant was previously entitled to income support on the grounds of disability, for a period of 4 or more consecutive days, and
(ii) the claimant ceased to be entitled to income support on the grounds of disability not more than 8 weeks before the commencement of the period in respect of which the current claim is made.

2(d) a claim for income support on the grounds of disability made by a claimant who is entitled to incapacity benefit or severe disablement allowance; or
(e) a claim for incapacity benefit made by a claimant who is entitled to income support on the grounds of disability.

(3) Paragraph (1) does not apply insofar as a claim is treated as a claim for severe disablement allowance, maternity allowance or carer’s allowance under regulation 9(1) of and Part 1 of Schedule 1 to, the Social Security (Claims and Payments) Regulations 1987(b) (claims treated as claimed in addition or in the alternative).

Claim by person entitled or potentially entitled to existing award

3.—(1) A person who is entitled to an existing award is excluded from making a claim for an employment and support allowance.
(2) A claim for an employment and support allowance made by a person who would be entitled to an existing award if that person made a claim described in regulation 2(2), is to be treated as a claim for that award.

AGodfrey
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Ah, so because the period of illness began before the 31st Jan he should be able to argue entitlement to IB. He’ll need a backdated sicknote from the hospital and I’d expect he would need to appeal since the DMG refers to any claim post 31/1.

It appears he has been lucky, I still think he wouldn’t have been entitled to anything if he had fallen ill after 31/1.

seand
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Sadly I don’t think that’s correct Lee:

A bit of digging suggests that paras 2(2) a,b,c don’t apply any more. They were revoked by Reg 24 of The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (SI 1907/2010)

loliver
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If the link is fully broken and IB/ESA is not payable then your service user ought to be able to claim SSP! If its refused appeal to the Revenue.

If that avenue is denied him them the claim is to ESA. (It should be anyway and then appeal) 

Given his employment period and his pre-existing benefit and credit claim he would appear to meet the 1st and 2nd contribution condition. The relevant tax years being 2007/8, 2008/9 & 2009/10.(1st condition) and 2008/9 & 2009/2010 (2nd condition)

On a more general point if this is as it appears, then no-one currently receiving IB or its equivelant should even contemplate going back to work until after getting a conversion decisison.

Lee