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ESA linking rules and transition from IB
I am hoping someone could confirm that I am interpreting ESA linking rules correctly.
My client recently underwent WCA during transition from IB. She scored 0 points. We have appealed the decision. My client is a member of a couple and her partner has fairly high earnings so client being placed in support group is quite important to avoid ESA ending after 365 days. She has recently developed a new health condition and I think she should request a new WCA as I understand that any new period of LCW will be linked to previous period of incapacity for work (as seperated by less than 12 weeks) before WCA decision ended this. The new health condition gives more chance of client being placed in support group and if the linking rules apply she will meet NI contribution conditions. If linking rules don’t apply then she wont meet NI contribution conditions.
Am I thinking along the right lines here people? Will the periods be linked? I’ve had a long day and I could be missing something big. I am worried that if we delay reprting new health condition the linking rules wont apply if 12 weeks pass. The decision is under appeal though so how do the linking rules come into play here?
Alternatively, we could wait for the appeal to be heard and see how we get on. We could report the change of circumstances after the appeal is heard if my client is only placed in work-related activity group. Problem then is if my client loses the appeal.
..If linking rules don’t apply then she wont meet NI contribution conditions…
That’s not correct. The linking rules cannot help someone migrated from IB to ESA. Such claimants can re-qualify for contributory ESA in the future by either:
(i) satisfying the contribution conditions afresh, or
(ii) after their contributory ESA has ended due to time-limiting, they continue to have limited capability for work and subsequently qualify for the support component.
Option (i) is n/a because she hasn’t earned more than the lower earnings limit each week for 26 weeks in either 2010/11 or 2011/12. And option (ii) is n/a because her contributory ESA (CESA) has not been time limited yet (ie, she should still be receiving £71 CESA at present pending her appeal against the conversion decision).
Her above £71 p/w means she’s currently in a period of Limited capability for work (pLCW). But even that pLCW cannot link to the period of incapacity for work (PIW) which ended when her IB stopped, despite the fact there’s probably only a day between the two periods concerned. The Conversion rules don’t allow a pLCW to link with a PIW full stop.
If she applies for a supersession of her current award of £71 p/w CESA on the basis that she qualifies for the support component based on the new condition, and she’s successful, all it means is that the clock that’s currently counting the days of her current CESA stops ticking. She’d avoid being time-limited for as long as she stayed in the support group. It would be up to her in those circumstances whether she continued with her appeal against the conversion decision.
If she is unsuccessful with her above supersession (eg a new WCA continues to score her nil points) then that’s not going to end her £71 p/w award. That’s because Reg 147A ESA Regs (as modified by the conversion regs) in effect ignores the result of a further unsuccessful WCA.
If she was partially successful on the above supersession, ie she got into the WRAG, I would definitely appeal that decision and ask for that appeal to be joined with the appeal against the conversion decision. Otherwise if the conversion appeal tribunal put her in the support group, its decision would arguably be for a fixed period only, ie upto the date of the subsequent WRAC award.
[ Edited: 4 Mar 2013 at 07:59 pm by Tom H ]Thanks Tom. Much appreciated.