IB ESA under and keeping the NI credits going

Hi

Cl is on IBESA as was previously IS claimant for being IOW (credits only, no ICB). Went through WCA, failed, and has an appeal. Ptnr has recently put in claim for CA, as cl getting HC, HM. Its poss therefore for a switch to ptnr as Carer to claim IS (and this is worth more in money terms).

But can cl continue with the IBESA appeal - this would be useful to have to get the NI credits, and in case the DLA is removed later (ending IS claim) to go back on to ESA without the 13 week assessment phase.

When looking at the regs it would appear IBESA and IS cant be paid together - but really in this case, its the NI credits that having LCWRA brings that cl would be after…...

Cheers!

I feel on shaky ground with this one, but I would have thought that it would be possible to do this. Under Reg. 8B The Social Security (Credits) Regulations that it was possible to receive credits in a week which each of the days was a day of limited capability for work… or would have been such a day had the person concerned been entitled to an employment and support allowance….or would have been had that person claimed an employment and support allowance.  If the partner claims income support, then the client is no longer entitled to ESA, but nonetheless may be able to demonstrate limited capability for work through pursuance of the appeal?  Any other thoughts..?

Why does he want the credits? Full state pension requires 30 years of credits and/or contributions. Has he got an illustration of the number of years he has already?

Credits for having Limited Capability for work are awarded for every week you either:

1.  were awarded CESA or ir-ESA, or

2.  would have been awarded:

(i)  CESA but for the fact you didn’t satisfy the contribution conditions, or
(ii)  CESA but for time limiting, or
(iii)  CESA or ESA-ir, provided you claimed it in the prescribed time, ie 3 months.

If he gives up his ESA-ir to allow his partner to claim IS, they’d be financially better off (he’s getting the EDP already on account of his HRC and the couple DP is greater than the support component).  However, would he qualify for credits? I think so.

He wouldn’t satisfy (1) above because he’d no longer have any award of ESA, contributory or income-related. 

If he passed his tribunal, he would satisfy 2(i) above because during the currency of his wife’s IS award he could meet all the conditions for an award of CESA except the contributions conditions (that’s why he was on ESA-ir in the first place).  Note: one of the basic conditions under section 1(3)(e) Welfare Reform Act 2007 is that he is not entitled to income support, but that does not prevent his partner being the IS claimant.

2(ii) above is n/a and he wouldn’t satisfy (iii) because even if he claimed ESA-ir in the prescribed time his wife’s IS would prevent him qualifying (see para 6(1)(d) to Sch 1 of WRA 07).  If he claimed CESA in prescribed time he would fail for not satisfying contribution conditions (that’s why he qualifies under (i) above).

He doesn’t even have to win his tribunal in my view, although obviously that would help.  But the fact is he probably already has been awarded sufficient credits for 2011/12 due to the combined effect of his awards of ICW credits and ESA-ir pending appeal. 

He should be thinking about 2012/13.  All he’d need to do to get credits for that tax year would be to apply (no sooner than 6/4/13) in writing for credits stating his grounds.  Accompanying that application with a one year backdated sick note dated 6/4/12 – 5/4/13 should suffice.  Of course, the DM might refuse to award credits but that would be appealable. 

His current ESA-ir appeal is likely to be against a decision prior to 6/4/12, so failing to win or even withdrawing his appeal would not be critical to his chances of being awarded credits for 2012/13 and subsequent tax years.  Although the DM might use evidence of an unsuccessful or withdrawn tribunal re a WCA made in tax year 2011/12 to support his decision not to award credits for 2012/13.  So probably wise to pursue his current appeal.

In R(IS) 4/04 Commissioner Mesher, as he then was, found that a backdated sick note, or even lesser evidence, eg a hospital letter perhaps not directly referring to incapacity for work could be enough to support a backdated claim.  And it was recognised that this might advantage a claimant, because it meant that he could effectively side-step a medical by providing a backdated sick note.  What stopped the claimant in that case being successful would not apply to a credits decision, as the latter would never be made until the claimant produced his backdated sicknote.