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

National Insurance conditions for Old Style Contributory ESA are different for New Style ESA? 

Andyp5 Citizens Advice Bridport & District
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DWP are arguing that the two National Insurance conditions for Old Style Contributory ESA are different for New Style ESA? Citing the Welfare Reform Act 2012 and the ESA regs 2013?

There is consensus that our client meets the first NI contribution condition on the basis of NI credits credited from her Carers Allowance claim.

But she doesn’t meet second NI contribution condition on the basis of NI credits credited from her previous Widowed Parents Allowance claim because they argue that this only applied to Old style ESA, not New style ESA. They cited the Welfare Reform Act 2012 and the ESA regs 2013 but that is as specific as they get.

Rejecting our argument In the MR citing the following legislation Reg 9 ESA Regs 2013 and Reg 8C Social Security [credits] Regs 1975 applied.

In the appeal application we argued the above applied to New Style because etc etc i.e. Reg 2 ESA regs 2013.

Interpretation - Reg 2. - In these Regulations - “the Act means the Welfare Reform Act 2007; “Second contribution condition” means the condition set out in paragraph 2(1) of Schedule 1 to the Act; Employment and Support Allowance Regulations 2013.

They ignore that and repeat their previous stuff…..........

Am i missing something?

Ianb
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Andy, I didn’t reply to this yesterday because I thought you might get a response from someone who knew the answer.

In the absence of a reply from someone else I am slightly confused by the question.

If I recall this correctly the first condition is to have actually paid, or been treated as having paid, contributions for 26 weeks in one of the two benefit years considered, The relaxation for someone who received CA at any time in the previous benefit year is that this condition is relaxed so that it can be met by contributions in any year, not just the last two.

The second condition is to have credits or contributions equivalent to 50 weeks in both the relevant benefit years.

I am unclear from your question exactly what your client’s history is. What benefits were they receiving in the tax years 2017-18 and 2018-19?

nevip
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And I’m completely confused.  First, as has been said, regulation 9 of the ESA Regs 2013 is simply concerned with the relaxation of the first contribution condition.  And second, regulation 9 is in identical terms to regulation 8 of the ESA regs 2008.

When they say “she doesn’t meet second NI contribution condition on the basis of NI credits credited from her previous Widowed Parents Allowance claim because they argue that this only applied to Old style ESA, not New style ESA” they cite no regs to support that proposition.  They cite regulation 8C of the 1975 Credits Regs but that simply just outlines the conditions for a credit where the claimant was on a bereavement benefit and say nothing about new style ESA (a term I hate by the way).

It might be that that, as Ianb alludes to, your client doesn’t satisfy the second contribution condition depending on whether she was credited with sufficient credits during the relevant tax years, but that is a different matter altogether, and I can find nothing to support the proposition that those requirements are different, in any substantial sense, for the 2008 regulations and for the 2013 regulations.

I think that until they provide a more coherent explanation for their decision then it will be difficult to get to the bottom of it.

Andyp5 Citizens Advice Bridport & District
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Thanks Ian and Paul!

I can imagine why you were both confused having re-read the post a few times!

The dispute is not that she has been credited with insufficient credits, there is erm agreement on that (honest).

What the DWP are saying is that WPA credits are fine for old style ESA. but the legislation for new style ESA does not allow for WPA credits, as implausible as that sounds!

The written response / appeal bundle template actually states ironically the ‘decision was made in accordance with the following Acts and regs’ Welfare Reform Act 2007 etc etc. See line below.

‘No similar provisions have been made for New Style ESA under the Welfare Reform Act 2012 and the ESA regs 2013’.

Edited Just for completeness 2017/18 - April WPA credits until July (been in receipt of WPA for several years before hand) then underlying entitlement to CA i.e. carers credits.. WPA ends and CA payments take over in that tax year.

2018/19 CA.i.e. carers credits

 

[ Edited: 21 May 2020 at 12:28 pm by Andyp5 Citizens Advice Bridport & District ]
Elliot Kent
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Andyp5 Citizens Advice Bridport & District - 21 May 2020 12:11 PM

‘No similar provisions have been made for New Style ESA under the Welfare Reform Act 2012 and the ESA regs 2013’.

Wot?

New style ESA isn’t awarded under the 2012 Act. It’s still awarded under the 2007 Act, as amended by the 2012 Act.

The Credits Regs and Married Women and Widows Special Provisions Regs obviously only refer to the 2007 Act so maybe that is why the DM is getting confused?

Andyp5 Citizens Advice Bridport & District
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Elliot Kent - 21 May 2020 12:59 PM
Andyp5 Citizens Advice Bridport & District - 21 May 2020 12:11 PM

‘No similar provisions have been made for New Style ESA under the Welfare Reform Act 2012 and the ESA regs 2013’.

Wot?

New style ESA isn’t awarded under the 2012 Act. It’s still awarded under the 2007 Act, as amended by the 2012 Act.

The Credits Regs and Married Women and Widows Special Provisions Regs obviously only refer to the 2007 Act so maybe that is why the DM is getting confused?

Exactly!

Andyp5 Citizens Advice Bridport & District
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Just for completeness attached a page from the written response from the SOS…............................stating…....................

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Andyp5 Citizens Advice Bridport & District
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Latest from Secretary of State’s supplementary supplementary submission in response to HMCTS Direction in response to our Interlocutory ........................

‘The same basic contribution conditions do apply to both old and new style ESA but not in respect of the receipt of WPA to potentially satisfy the second contribution condition. Paragraph 8C (1) (c) of the Social Security (Credits) Regulations 1975 only allows for a person who has been in receipt of WPA to satisfy the second contribution condition of old style ESA. Mrs Sixpenny Handley has claimed new style ESA and the law has made no similar provision for that’.

Elliot Kent
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Doesn’t really take us anywhere does it? The DM is getting confused at so base a level that having the debate is pointless.

The DM’s argument is wrong even on its own terms because Reg 8C(1)(c) does directly refer to new style ESA.

(1) This regulation applies for the purpose only of enabling a person who previously received a bereavement benefit (“the recipient”) to satisfy, as the case may be, the condition referred to in—

(a)paragraph 2(3)(b) of Schedule 3 to the Contributions and Benefits Act in relation to short-term incapacity benefit;
(b)section 2(1)(b) of the Jobseekers Act 1995 in relation to contribution-based jobseeker’s allowance or
(c)paragraph 2(1) of Schedule 1 to the Welfare Reform Act in relation to a contributory employment and support allowance.

“Contributory employment and support allowance” is a defined term for the purposes of the Credits regs at Reg 2:

“contributory employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance, and a contributory allowance under Part 1 of the Welfare Reform Act as that Part has effect apart from those provisions;

i.e. New style ESA.

Andyp5 Citizens Advice Bridport & District
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Elliot Kent - 05 August 2020 01:36 PM

Doesn’t really take us anywhere does it? The DM is getting confused at so base a level that having the debate is pointless.

The DM’s argument is wrong even on its own terms because Reg 8C(1)(c) does directly refer to new style ESA.

(1) This regulation applies for the purpose only of enabling a person who previously received a bereavement benefit (“the recipient”) to satisfy, as the case may be, the condition referred to in—

(a)paragraph 2(3)(b) of Schedule 3 to the Contributions and Benefits Act in relation to short-term incapacity benefit;
(b)section 2(1)(b) of the Jobseekers Act 1995 in relation to contribution-based jobseeker’s allowance or
(c)paragraph 2(1) of Schedule 1 to the Welfare Reform Act in relation to a contributory employment and support allowance.

“Contributory employment and support allowance” is a defined term for the purposes of the Credits regs at Reg 2:

“contributory employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance, and a contributory allowance under Part 1 of the Welfare Reform Act as that Part has effect apart from those provisions;

i.e. New style ESA.

Extraordinary situation!

Andyp5 Citizens Advice Bridport & District
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DWP have lapsed appeal in client’s favour…...............etc etc

Thanks all etc etc really appreciated.

Originally i hesitated to actually post this post because i thought it would seem so implausible, and at that stage didn’t have access to a scanner.