Time limiting

In the memo DMG 13/12 it sasy in relation to repeat claims for converted cases “any further claim must be based on the normal conditions of entitlement, including the contribution conditions where appropriate, and must be in respect of a PLCW which does not link to the time-expired award”. Not sure about the last bit. For bog standard cases the need not to have your PLCW linked is related to getting your contribution conditions assessed on a different benefit year since you cannot use the same contribution years. This problem doesn’t arise in conversion cases though so does the linking of PLCW really matter?

See the new Reg 16(1A) of the Conversion Regs, as inserted by Reg 21 of SI 757/2012, which provides as follows:

“(1A) Where—

(a)a person makes a claim for an employment and support allowance subsequent to the termination of that person’s entitlement to an employment and support allowance by virtue of these Regulations; and
(b)the period of limited capability for work in relation to that claim would link, by virtue of regulation 145(1) of the 2008 Regulations, to a period of limited capability for work in respect of which an award was made by virtue of these Regulations,
that person’s entitlement to an award of an employment and support allowance shall be determined in accordance with these Regulations.”

I’ve had a look at this a few times and I feel the DWP interpretation of the above regulation found at para 25 of DMG 13/12 is wrong.

Take this example,

i.  My award of IB is not converted to CESA by a conversion decision whose effective date is 6.6.11.

ii.  I appeal that decision and am awarded CESA pending appeal from 7.6.11 by virtue of Reg 147A(1A) ESA Regs as modified by para 15 of Schedule 2 to the Conversion Regs.

iii.  The tribunal has still not heard my appeal by 6.6.12, ie 365 days later.

iv.  My CESA pending appeal is ended from 6.6.12 due to time limiting.  Note: the section of the WRA 07 dealing with time limiting, ie section 1A, is modified slightly in conversion cases by para 2A of Schedule 2 to the Conversion Regs (inserted by Reg 10(4) of SI 913/2012).

v.  I make a new CESA claim on 1.7.12 which we’ll assume satisfies both contribution conditions.  The new award of CESA would clearly start within 12 weeks of my last award in (iv) above, so the two awards “would” link under Reg 145(1) ESA Regs.  Consequently, Reg 16(1A) Conversion Regs, mentioned above, applies.

vi.  Reg 16(1A) requires my new claim to be determined under the Conversion Regs. Fair enough.  But it’s the Department’s application of those regs which seems flawed.  It looks like they are saying I do not satisfy section 1(2) WRA 07, as modified by para 2(a) of Schedule 2 to the Conversion Regs.  Consequently, I cannot be paid CESA despite the fact my claim would otherwise satisfy the contribution conditions.  Instead, I’d have to wait 12 weeks from 6.6.12 before an award under the ordinary contribution conditions could be entertained. 

The problem for the Department is that section 1(2) WRA is “subject to the provisions of this Part [ie Part 1 WRA 07]”.  Consequently, it is subject to section 1A, as modified (see point (iv) above).  Section 1A(3) provides as follows:

“(3) The fact that a person’s entitlement to a contributory allowance has ceased as a result of subsection (1) [ie time limiting] does not prevent his being entitled to a further allowance if he satisfies the first and second conditions set out in Part 1 of Schedule 1”

So, I agree Damian that the guidance appears incorrect and there shouldn’t be any ban on someone re-applying for CESA based on the normal contribution conditions.

It would be different if my CESA pending appeal in the example above had ended not because of time limiting but because the tribunal had dismissed my appeal before the 365 days were up.  In that event, Reg 16(1A) does indeed appear to prevent (for 12 weeks) a new award based upon the ordinary contribution conditions, as section 1A(3) would not apply in those circumstances so section 1(2) would. That appears true even if the person worsened within those 12 weeks to the extent that they’d qualify for the support group.  Section 1B WRA 07 only applies where the old award was time limited rather than ending via a failed WCA.

But in reality Damian there’s going to be few people I imagine who could re-qualify for CESA based on satisfying the contribution conditions within 12 weeks of their converted CESA ending due to time limiting.  Carers, able to rely on the relaxation rule in Reg8, would be the most likely candidates.

As an aside ...
I have a cl who’s ESA is due to end 30/04/12 because he has received 12 months WRAG cont. based ESA.
He cannot reclaim ESA because he does not satisfy the N.I contribution conditions.
From memo 13/12 my cl can ask JCP to supersede the decision to be placed in the support group rather than the WRAG (para 28) ?
Is this correct, just would like to know I’m on the right path ?
Thank you for any feedback ...