Incapacity Benefit/ESA Linking Rules

I have a client with mental health problems who was previously receiving Incapacity Benefit but came off it when he believed he was ready to return to work.  However, he only did two days work (both unpaid) before he was signed off work by his GP again.  He then tried to use the 12 week linking rule to re-apply for Incapacity Benefit but was told that as ESA had replaced IB, the linking rule does not apply and that the relevant transitional protection regulation was abolished on 31/1/11 (ESA Transitional Provisions Regs 2008 and Reg 23 ESA Regs 2010).  However, my client recently rang the DWP Helpline and was told that the linking rule change had not come into affect until April 2012.  My client tried to reclaim IB/ESA in May 2011, so if the transitional rules were not abolished until April 2012 I believe he should still be protected. He is attending an appeal hearing on 29th June, so I was hoping to advise him further about this and if possible send the change of regulation date to him prior to the hearing.  Any advice would be much appreciated. Dave

It was the 104 week linking rule for periods of LCW for ESA, which applied to welfare to work beneficiaries, which was abolished in April 2012.  The relevant linking rule for your claimant, was where 2 periods of incapacity for work with a gap of less than 8 weeks were treated as one.  This was abolished with effect from 31st January 2011, when Reg. 2(1) ESA (Transitional Provisions) Regulations 2008, was amended, meaning that a new claim for IB in this situation was no longer permitted (or treated as an ESA claim), and a claim for ESA would have to be made instead

Thanks for your advice.  It looks like there is no scope for my client to overturn this decision and unfortunately, as he has a private pension, he will not qualify for income-related ESA by way of a new claim either. Dave

The DWP continued to issue letters re the pre January 2011 WOW beneficiaries an incorrect statement of the law - the letter was a BF220 C - all recipients of the incorrect statement were meant to obtain a further letter advising them of tehe loss of the linkage. The RNIB legal services received correspondence on this matter stating the error they made. It was the subject of a post on rightsnet in May 2011 if I recall. In effect the claimant was entitled to be guided as to the change and the subsequent error. There is a NI judgment - C1/06-07(IS)  that considers the same letter if I recall. Unsure if this may aid you.