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

CB vs IR ESA. Do they always check entitlement for both on application?

JAS1
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Hey,

Just a quick query. Am I right in thinking that upon application for ESA DWP will check entitlement for both CB and IR ESA?

I know when you apply they ask which one you want to apply for but am I right in thinking they always check entitlement for both?

I am asking as I made an application for a client for IR ESA and have now found out it would have been worth me trying for CB ESA as I have found out she may qualify for this.

Thanks

edit: also a follow up question -

is it possible for someone to be eligible for payment of IR ESA on the main phase rate but not at the assessment rate (due to their income being too high for the basic personal allowance but not too high when they add the extra components in?). If so would they just not get paid anything until the applicable amount goes up?

[ Edited: 24 May 2017 at 02:48 pm by JAS1 ]
Benny Fitzpatrick
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I wouldn’t take it as read.

I have come across many examples where cbESA has stopped after 12 months, and clients have to make new claim for irESA, because eligibility hasn’t been checked, or because client failed to indicate that they wished to be considered for both.

To be fair, this happened more often in the days of the old ESA paper claim form, which had a question requiring claimants to indicate which type of ESA they were claiming. Claimants had to tick both cb and ir options to be considered for both.

However, it wouldn’t surprise me if the modern type of DM, looking for excuses to close claims, would seize on this to deny benefit.

JAS1
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hmm ok, cheers Benny. This was a phone application, I can’t remember what we specified. Might have to give them a call to check.

Have you come across any examples of my second question at all? -

Basically I am wondering what happens if when means tested for IR ESA someone’s income is too high for the basic personal allowance but is not too high if they got the support group component and enhances disability premium added to the applicable amount. Do they just get paid once they are on the main phase but not in the assessment phase?

Benny Fitzpatrick
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They couldn’t get the support component unless they have been assessed. Severe Disability Premium etc would be payable during assessment phase. EG if Cl’s income is £74.00, irESA would be paid at £61.55/week.

JAS1
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What about if they aren’t eligible for SDP? Would they just be on the 13 week (or more) waiting list on no ESA in the hope that when they are assessed they can get in the support component and this raises their appropriate amount enough to get a bit of ESa paid?

Hope this makes sense, I feel I am missing something obvious here!

Mike Hughes
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Daphne
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Mike Hughes - 25 May 2017 02:49 PM

Ahem :)

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/legal-requirement-for-conversion-decisions-from-incapacity-benefit-to-esa-t

Isn’t that just looking at conversion decisions Mike - not straight applications?

JAS1
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Cheers Mike, my org doesn’t have a subscription yet so I can’t see that link unfortunately. Does it apply for new applications?

shawn mach
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Daphne
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JAS1 - 25 May 2017 03:42 PM

Cheers Mike, my org doesn’t have a subscription yet so I can’t see that link unfortunately. Does it apply for new applications?

That decision doesn’t apply to new applications but this one does - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4349

Judge Rowland highlights that a claimant may ‘waive’ the need for the Secretary of State to consider one or other of the allowances -

‘As a matter of practice, a claimant is given an opportunity on a standard claim form to indicate whether he or she wishes to ‘claim’ both allowances or only one of them.  That has obvious administrative advantages for the Department and it also has advantages for claimants – provided that they do not wrongly believe that they are not entitled to one or other of the allowances – because it avoids delay while contribution records are investigated or, probably more importantly, makes it unnecessary for a claimant to provide details of his or her financial position.  Nonetheless, despite the language usually used, an indication that one or other of the allowances is not ‘claimed’ amounts to a waiver of the need for the Secretary of State to consider entitlement to that element of employment and support allowance, rather than amounting to a true failure to claim it.  The legislation does not actually contemplate there being a claim for only one element of the allowance.’ (paragraph 13)

Judge Rowland observes that, if a decision is to be altered, there must be a valid ground on which to do so -

‘For instance, because a claim is not necessary in respect of each element of ESA, if a person says on a claim form that he or she wishes to ‘claim’ only one element and a decision is made in respect of that element, it seems to me that it must be open to the claimant, if he or she thinks that it was a mistake not to ask for both elements to be considered, to raise the question of entitlement to the other element by way of an application for a revision under section 9 ‘on any ground’ (see regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)) or subsequently if there is an appeal.  There are also other bases upon which an application for a revision may be made…This requires a legal analysis of the decision-making…’ (paragraph 15)

Mike Hughes
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It doesn’t cover new applications (my bad) but between the two decisions you end up in the same place.

JAS1
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Thanks very much all.

Don’t suppose anyone has any knowledge on my other query? Basically what happens when someone’s income is too high to get paid the basic rate of IR ESA but it would not be too high once they get on the main phase and get the premiums added in to the appropriate amount etc? Feel like I am missing something obvious here!

Daphne
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Yes it should be a credits only claim initially and then once the applicable amount is above the income then payment of irESA should kick in.

JAS1
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Thanks very much Daphne