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Re-claiming Contributory ESA
Firstly, thanks very much to Tom H and Damien for putting me right on the regulation 13 issue.
Can I just see if I’ve now got my head round this right?
I’m trying to see if there’s a way to help identify clients who have lost CBESA from 1 May but who might be able to successfully reclaim it after 12 weeks if they retain a LCW.
As the new CBESA claim will be in 2012 then the relevant tax years for NI contribution purposes will be 2009/2010 and 2010/2011.
This means that :
1) They will need to have been receiving CBESA no earlier than 5 October 2009 (in order to have a chance of meeting the first “26 weeks” contribution condition.
2) Prior to them receiving CBESA they must -
• have actually paid NI for 26 weeks in either 2009/2010 or 2010/2011; or
• received carer’s allowance for at least one week during 2010/2011; or
• meet the ex-prisoner “quashed conviction” exemption; or
• meet the low-paid disabled worker exemption.
(see CPAG page 791 re relaxation of the first condition)
Thanks again to anyone who can put me right if I’m wrong on this.
This is distress flare…
Given all of the cogent discussion about LCW status after your 365 days are up, does someone have a view about this from an earlier thread, about options after 365 days…
“...Can a person in principle then change to JSA? I am assuming the loss of CBESA at 365 days does not automatically mean the loss of LCW status. If one still has LCW status, how can one then get JSA, since section 1(2) of the JSA Act says you can’t get JSA if you have LCW?...”
I have been pointed to older threads, but cannot seem to understand the answer, if it is there.
A bag of maltesers to the author of first correct answer.
Steve
A person who claims JSA and has reasonable prospects of finding work is treated as not having limited capability for work even if it has been determined that he actually does have limited capability for work (Reg 31, ESA Regs.)
Reg 31 was revoked Oct 2010 by SI 2010/1907
Thats just effin brilliant.
Then how about Reg 32A?
I think it must be possible for a claimant who has been assessed as having LCW to simply write to the DWP and say they no longer wish to be so regarded.
Isn’t it akin to a claimant’s right to withdraw from an ongoing award of benefit?
(remember all that fun with withdrawing HB claims to get people on LHA where such arguments were used and DWP initially said you couldn’t withdraw from entitlement?... I know such people were then rudely surprised by the capping of LHA and should have remained on old system…..)
Steve: is there any chance me, Damian and Nevip could share those maltesers? Just send them to me and I will divvy them up. Trust me.
Trust no one Steve. I treasure my maltesers.
Anyone know what linking rule they are referring to?
Yes, Reg 5(6) & (7) of SI 2012/919 amend the ESA Regs as follows:
(6) In regulation 145 (linking rules) omit paragraphs (2) to (5).
(7) Omit regulations—
(a)148(13) (work or training beneficiaries);
(b)149(14) (linking rules – limited capability for work); and
(c)150(15) (linking rules – limited capability for work-related activity).
See DMG 14/12 also.
[ Edited: 9 May 2012 at 06:47 pm by Tom H ]Just trying again to see if anyone has a view on the following.
I’m trying to see if there’s a way to help identify clients who have lost CBESA from 1 May but who might be able to successfully reclaim it after 12 weeks if they retain a LCW.
As the new CBESA claim will be in 2012 then the relevant tax years for NI contribution purposes will be 2009/2010 and 2010/2011.
Does this mean that :
1) They will need to have been receiving CBESA no earlier than 5 October 2009 (in order to have a chance of meeting the first “26 weeks” contribution condition.
2) Prior to them receiving CBESA they must -
• have actually paid NI for 26 weeks in either 2009/2010 or 2010/2011; or
• received carer’s allowance for at least one week during 2010/2011; or
• meet the ex-prisoner “quashed conviction” exemption; or
• meet the low-paid disabled worker exemption.
(see CPAG page 791 re relaxation of the first condition)
No maltesers but I can run to a toblerone if needs be.
I have a client who has used up her 365 days of c-ESA, but has not been transitioned from ICB. I wonder if she will get another 365 days, on being transitioned?
This came about because she got placed into the work group of ESA while appealing a PCA decision on her ICB. The PCA hearing was successful, and she subsequently was paid c-ESA topped up with ICB. The ESA part has now expired.
Ken
You’ve missed from your list credits for certain spouses/civil partners of service families. This was inserted into Reg 8(2) by SI 2011/2862. CPAG refers to it at paragraph 2 of page 791. It represents a further route to relaxation of the 1st contribution condition.
Point (1) of your post is correct where they have been CONTINOUSLY in receipt of CESA from 5/10/09, otherwise they might have been on CESA from that date but then gone back to work in 2010/11 for at least 26 weeks, something which your first bullet of point (2) recognises.
Those whose CESA is time limited from 30/4/12 will have been on CESA since at least 30/4/11. This means tax year 2010/11 could not possibly have been one of the tax years used to satisfy the 2nd contribution condition in respect of their now time limited award. Consequently, anyone who breaks the link with the old award, ie by waiting 12 weeks, will have 2010/11 potentially available as their “later” tax year in order to satisfy the 2nd contribution condition. Of course, whether 2010/11 actually does satisfy that condition will depend on their individual contributions/credits record in that year.
My advice to anyone whose new CESA claim is refused for failure to meet the contribution conditions would be to request a breakdown of the contributions/credits used by the DWP and to then cross reference that with their employment/benefits history for the offending year(s) concerned. It might prove interesting. It would appear, for example, that people receiving SSP might not automatically be awarded credits as they normally are when claiming DWP administered benefits such as JSA/ESA. Consequently, later decisions that they do not satisfy the 2nd contribution condition for CESA might be wrong.
Also, where someone is able to be re-awarded CESA based on different contribution years AND they are placed in the support group in respect of that new award, DMG 13/12 suggests that the new award should be based on the contribution conditions rather than Section 1B WRA, ie the so-called deterioration route. That results in the support component being awarded from week 14 of the new award rather than day 1. See para 27 of DMG 13/12 including the example used there. I think that interpretation is almost certainly wrong as a statement of the law. Section 1(2) WRA makes satisfaction of the contribution conditions subject to other provisions, of which section 1B is one. Consequently, section 1B appears to take priority over the contribution conditions. The DMG interpretation obviously saves the government money.
The DWP may argue that it is more advantageous to the claimant to have his new award based upon the contribution conditions rather than on the deterioration route, because entitlement ends under the latter as soon as he loses support group status, whereas losing support group status under the former would merely cause his 365 days to start to run. However, I’d argue that a person who was entitled under both routes at the start of his award, has an underlying entitlement based upon the contribution conditions so that if he is found no longer to have LCWRA, his entitlement switches at that point to one based on the contribution conditions with the result that his 365 days start to run as above, so that he doesn’t lose out.
Finally, I’ve seen no estimates of how many people could successfully re-claim CESA in 2012 based upon new contribution years. I suspect the government will have factored ignorance of the option of re-claiming into their calculations on the amount of money time limiting will save the Exchequer. For those who won’t ever re-qualify for CESA based on contributions unless they return to work in the future, I wonder how often they’ll be re-assessed under the WCA. Each new medical would of course present an opportunity to get into the support group and re-qualify under the above deterioration route. The danger, of course, is that people don’t see the point in attending, or appealing unsuccessful, re-assessments when failing to do so will lose them the right to rely on the deterioration route.
I have a client who has used up her 365 days of c-ESA, but has not been transitioned from ICB. I wonder if she will get another 365 days, on being transitioned?
This came about because she got placed into the work group of ESA while appealing a PCA decision on her ICB. The PCA hearing was successful, and she subsequently was paid c-ESA topped up with ICB. The ESA part has now expired.
She should. Even if her entitlement to CESA had not expired, her IB would still have fallen to be considered for conversion - see Reg 7 of the Conversion Regs. But it would have meant that she was treated as satisfying the LCW test.
The time limiting provisions have amended Reg 7 so that the above position continues now that her CESA has been time limited. In other words she is still classed has having LCW for conversion purposes. The only decision on conversion will be what component she receives. So she should definitely be due at least another 365 days following conversion, more if she’s placed in support group.
[ Edited: 15 May 2012 at 10:04 am by Tom H ]It would appear you have all got your heads around this… I have not!!
I have client, was in receipt of IB from August 2001…transitioned to CESA in WRAG… 365 days us up this August. Is there any way at all she may be able to requalify for CESA?
Ta, in advance.
Chaos