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

Changing cbESA to irESA after the award has ended

Robert M Thompson
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Info Point, Citizens Advice Portsmouth

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Hi all,

Apologies if this is a silly question as I don’t usually work with ESA.

I have a client who approached us a couple of weeks after her ESA ended. I rang the DWP to confirm the reason why: she’d been on cbESA and her award ended after 365 days as she was in WRAG.

However, without asking, they said that they’d send an ESA3 form out to see if she could get in the Support Group. I thought nothing of it at the time, but then I had look into and, and it appears to be the form to check if your cbESA can be converted/topped up with irESA.

Would anyone please be able to confirm if my understanding is correct, as well as if this is actually possible after an award has ended, as I wouldn’t think this would be possible.

Many thanks.

csmk
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Macmillan Benefits Advice Service/Citizens Advice Dudley Borough

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I think this could be done - DMG Vol 1 Chapter 41 paragraph 41840 says that they should calculate ir-ESA if there could be an ir-ESA entitlement.

CPAG page 26 states ir-esa can be paid on top of C-ESA.

LH v v SSWP (ESA) [2014] UKUT 480 (AAC) reported as [2015] AACR 14 at paragraph 11 and 12 confirmed that ESA is one benefit (and paragragh 17 mentions that the DWP consider the ESA3 form to be a supersession/review form) and DJ v SSWP (ESA) [2015] UKUT 0342 (AAC) at paragraph 25 also mentions this.

If the client is entitled to an ir-ESA amount, say due to change in circumstances which will be beneficial to them (I think) and this was before the claim ended, then under The Social Security and Child Support (Decisions and Appeals) Regulations 1999 No 991 Schedule 3C paragraph 1, the supersession takes effect from the first day of the benefit week in which the relevant change takes effect, so long as Reg 7(2)(a)(ii): ‘the change was notified to an appropriate office within one month of the change occurring or within such longer period as may be allowed under regulation 8 for the claimant’s failure to notify the change on an earlier date’

Please correct me if any of this is off the mark

[ Edited: 11 Jul 2019 at 10:31 am by csmk ]
Mairi
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Welfare rights officer - Dunedin Canmore Housing Association

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While payments ended, presumably she is still receiving NI credits? 

The DWP seem to often treat this as meaning that the claim is still open so might be minded to make any changes if now entitled to irESA.

csmk
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Macmillan Benefits Advice Service/Citizens Advice Dudley Borough

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I think from previous discussions the credits claim is not actually an ESA award anymore, so if there isn’t a review (anytime or any grounds) or valid supersession getting the ir-ESA paid immediately following the C-ESA ending, then it will be UC to claim. I think it was the consensus that the DWP are incorrect in reinstating the ir-ESA if it’s a credits only ‘award’.

Will try and find discussions later when I get chance

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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csmk - 11 July 2019 10:41 AM

I think from previous discussions the credits claim is not actually an ESA award anymore, so if there isn’t a review (anytime or any grounds) or valid supersession getting the ir-ESA paid immediately following the C-ESA ending, then it will be UC to claim. I think it was the consensus that the DWP are incorrect in reinstating the ir-ESA if it’s a credits only ‘award’.

Will try and find discussions later when I get chance

Possibly some or all of these
https://www.rightsnet.org.uk/forums/viewthread/13484/
https://www.rightsnet.org.uk/forums/viewthread/12714/
https://www.rightsnet.org.uk/forums/viewthread/5350

 

csmk
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Macmillan Benefits Advice Service/Citizens Advice Dudley Borough

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Thanks Ianb, couldn’t get round to this yesterday.

Daphne
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Could you do a revision of the decision to stop ESA when the cb ESA ran out on the basis that the decision maker should have carried out a supersession to check for ir ESA entitlement?