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

awarded IB not CB ESA

PW
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Paddock Wood Community Advice Centre

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Total Posts: 17

Joined: 5 April 2017

does anyone know of any case law or general pointers on the following-

the DWP decided to review a clients case after they asked about dental treatment costs for their daughter who is blind an profoundly disabled (no idea why this constitutes grounds) and decided that the client should have been on IB ESA not CB ESA yet the client has never worked and income has only ever been benefits.

The client was migrated in 2014 to ESA and all award letters state that she is entitled to both?

No idea but I thought that no income and support group means no limit to CB ESA and other premiums may be added

Any help? Manythanks

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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I’m not sure if this helps, but: yes, time spent in the Support Group does not count towards the 365 days of time-limiting on c-ESA. But you first need to count as meeting the contribution conditions for c-ESA. Do you know what benefit they were previously receiving? Incapacity Benefit would convert to c-ESA, Income Support would convert to ir-ESA; and you might get both.

(As far as I know, you can get c-ESA by being transitioned from Incapacity Benefit in Youth, which you used to be able to claim without paying NICs. So depending on the history it’s possible that they should be entitled to c-ESA without having previously worked.)

PW
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Paddock Wood Community Advice Centre

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previously Incapacity benefit - the client could never work from birth due to condition

thanks for the help it does make things clearer for my argument to DWP do you know where I could find a reference or direction to steer them to thanks.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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If you have a look at the regs you’ll spot that they’re discretionary and you might argue; “if he shows that he did not act wrongfully, or with any lack of care, in respect of the amount recoverable” then a charge shouldn’t apply.

I’ve had some luck with that with ambiguous ESA decision notices.

[ Edited: 9 May 2017 at 09:55 am by Dan_Manville ]
Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Also… you need to look at this; https://www.rightsnet.org.uk/forums/viewthread/5928/P90

If your clients circs haven’t changed since they migrated you might be able to get any missing IR awarded from the date of migration or at least from the date the last ESA3 was sent in… On a few NHS penalty charges I’ve seen this has provided a rather shiny silver lining.

[ Edited: 9 May 2017 at 09:55 am by Dan_Manville ]