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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA & temporary absence abroad…

Altered Chaos
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Hi all,

Client was in receipt of CESA in the support group (spouses income precludes entitlement to IESA). Client advised DWP that she was hoping to go on an extended trip to visit relatives down-under and queried how this would impact entitlement - no clear answer given despite several requests on the phone and in writing.

Client completed a BF5 confirming that this was a holiday and that she would be away for approx 3 months.

CESA ceased to be payable after 28 days as per reg152 of ESA regs.

Client returned and contacted DWP who state ‘you have to make a new claim as old claim closed’.

Client would not qualify for new claim of CESA as no NI conts in last 2 tax years.

Questions:
a) should CESA have been merely suspended after 28 days and reinstated upon return as absence from UK did not exceed 52 weeks,
b) could Client rely on linking rules to enable a new CESA claim? (was IB>ESA case)?

Thanks in advance,
Chaos

Altered Chaos
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I am bumping this query… come on you guys :)

Altered Chaos
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Hi Tony

Thank you for your words of wisdom as always… I had sadly concluded that reg152 and s1 WRA meant the DWP were right on the suspension-v-closure issue.

But the heat must be getting to me cos I completely forgot about linking rules, so all is not lost.

Many thanks again,
Chaos

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Altered Chaos - 19 June 2013 03:03 PM

But the heat must be getting to me cos I completely forgot about linking rules, so all is not lost.

Or maybe it is… Client is out of time to link the claim by 11 days, gutted.

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Linking is to periods of ‘limited capability for work’, so even though the claim was closed, could the period of LCW be continuous…?

(For example a person with no entitlement to receive ESA can maintain LCW for NI credits - see Social Security (Credits) Regs 1975, Reg 8B)

(Any port in a storm)

Tom H
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The CESA was converted from IB.  So even if the new period of Limited Capability for Work (pLCW) had linked to the old one, it’s not going to help her meet the contribution conditions if she hasn’t worked for many years.  At best, the linking would ensure that the “relevant benefit year” for contribution purposes would be the benefit year in which her conversion decision commenced, which would still be relatively recently.  And she’d need to have worked in at least one of the two complete tax years before that.  Unlikely.

Altered Chaos
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Phil Cole - 19 June 2013 04:10 PM

Linking is to periods of ‘limited capability for work’, so even though the claim was closed, could the period of LCW be continuous…?

(For example a person with no entitlement to receive ESA can maintain LCW for NI credits - see Social Security (Credits) Regs 1975, Reg 8B)

(Any port in a storm)

Nice thinking but I don’t I can get this creative… client had no ESA entitlement at all, therefore no LCW and no NI credits.

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We’re used to looking at linking rules which look at receipt of (or entitlement to) a benefit. Linking rules for ESA don’t - they link by being treated as having Limited Cabability for Work.

Limited Capability for Work is a condition for receiving ESA, but receiving ESA is not a condition for having LCW. LCW is defined in the Welfare Reform Act 2007:

(4)For the purposes of this Part, a person has limited capability for work if— .
(a)his capability for work is limited by his physical or mental condition, and .
(b)the limitation is such that it is not reasonable to require him to work.

Whether it is reasonable to expect them to work is then determined by Regulation 19 of the ESA Regs 2008, which again doesn’t specify receipt of ESA as a qualifying condition for LCW…

Reg 151 and 152 are clear that it is entitlement to ESA which is stopped when abroad, not treatment of having LCW (Reg 152 even talks about the need to continue to satisfy other conditions while abroad, which we can presume includes having LCW). Contrast that with Reg 159 where a prisoner is treated as not having LCW - so couldn’t link a claim coming out of prison to one before going in if the gap is more than 3 months.

Reg 145 links by period of LCW, then Reg 13 modifies the relevant Benefit Year to any that the period of LCW falls into.

The fact they were on IB befire conversion is actually the hardest bit - because LCW wasn’t about, so how could the period of LCW pre-exist their migration to ESA? The answer might lie in Reg 7 of the ESA (Existing Awards)(No 2) Regs 2010.

So all in I think it is worth applying and then appealing any refusal. Medical evidence that there has been no improvement since last being assessed may help to prove they still had LCW

Tom H
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I made exactly the point you make about the pLCW not pre-existing migration.  I’m at a loss to understand how Reg 7 Conversion Regs could help with that.  Reg 8 ESA Regs might help, eg if client had been a carer in the tax year prior to conversion.

Reg 2(1) ESA Regs provides:

“period of limited capability for work” means…. a period
throughout which a person has, or is treated as having, limited capability for
work, and does not include a period which is outside the prescribed time for
claiming as specified in regulation 19 of the Social Security (Claims and Payments)
Regulations 1987”

It’s implicit in that definition that a pLCW requires ESA entitlement (hence the reference to “claiming”).  The Credits Regs talk of a “day of LCW”. Whilst LCW is always needed for someone to be in a pLCW, you can have LCW without being in a pLCW, eg when claiming LCW credits only.  So I disagree with the proposition that you remain in a pLCW after ESA ends (even if you were to continue claiming credits).

I’m surprised she’s out by 11 days for linking.  She could’ve asked for upto 3 months backdating re the new ESA claim which may have brought the start of the new pLCW within 12 weeks of the old one ending.  Though as I stated earlier even linking is unlikely to help make the new claim a one for CESA.

There is perhaps one argument she could use if the pLCWs do link.  Her old award of CESA would have ended by supersession whose effective date would be 4 weeks after she left the UK (ie she could have relied on Reg 152 ESA Regs for first 4 weeks of absence).  The supersession was possible because of Reg 16(1) Conversion Regs which applies the Decision & Appeal Regs to her converted award of ESA.  So her old award was terminated by virtue of the Conversion Regs.  As such, Reg 16(1A) of those regs also applies to any new pLCW that links to the old.  It follows that her new claim could be CESA simply because the converted award was itself CESA, ie the new award is decided under the Conversion Regs which modify section 1(2) of the WRA 2007 so as to simply require an existing award of IB to have been converted and for that conversion to have come into effect.  Worth a go.

[ Edited: 20 Jun 2013 at 02:27 pm by Tom H ]
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Still arguable - not outwith the time limit for claiming doesn’t mean that the claim wouldn’t be disallowed on other grounds (such as ‘presence’). It just limits the time that you can ‘backdate’ a period of LCW. If it meant the person had to be entitled it would have said so!

What Reg 7(2) of the ESA (Existing Awards)(No 2) Regs 2010 appears to do is that if a person migrates to ESA the existing award (IB or IS) is taken to satisfy the condition set out in 1(3)(a) of the 2007 Act - which is the condition of Limited Capabilty for Work. So allows contribution conditions for years prior to year that went on IB to count in order that ESA (c) can be paid… It’s done that way because it isn’t linking to prev years NI contributions by receipt of (or entitlement to) a benefit, but to LCW

Therefore anyone converted did have LCW for the period they were on IB/IS

Also the ramification of linking in this way is that if a person is on ESA C (in WRAG) then the claim ends due to 365 days, and their condition later deteriorates so that they would qualify for the support component, there should be a way to link their claim. I believe this can be done through continued LCW

[ Edited: 20 Jun 2013 at 03:27 pm by Inverclyde HSCP Advice Services ]
Altered Chaos
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Crikey.. your knowledge is making my head hurt, but I think I am getting there (just) and I have double-checked the days of absence etc. I still do not think there is a saving grace here.

This is the actual time-line:
- Client leaves the UK on 18.01.13 for Australia
- CESA entitlement superseded from 15.02.13 decision letter sent out
- 12-week linked period ends 11.05.13
- Client returns to UK on 20.05.13 (was originally due to be back on 04.05.13 but bereavement delayed return)
- Client calls DWP on 22.05.13, is told to make new claim (not yet done by the way as got confused by conflicting advice and came to me!).

The issue I have is that the client was not in the UK at all during the 12-week linked period, so even if I could show she was in a pLCW she could not make a valid linked claim for ESA because a basic condition of entitlement is that the claimant is in Great Britain?!

My frustration is with the incorrect advice given by JCP when the client called to check her position before she left. A complaint is in order but this will not remedy the loss of ESA.

Tom H
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Phil Cole - 20 June 2013 01:25 PM

Still arguable - not outwith the time limit for claiming doesn’t mean that the claim wouldn’t be disallowed on other grounds (such as ‘presence’). It just limits the time that you can ‘backdate’ a period of LCW. If it meant the person had to be entitled it would have said so!..

The definition could be clearer I’ll give you that but it almost certainly does not include a period when you are not entitled to ESA.  The DWP’s guidance operates on the basis that a period on credits only is not a pLCW so does not help with linking.  And if you think about why a pLCW is relevant, eg for waiting days at the start of a, er, claim, or whether a claim meets the contribution conditions, it’s logical to tie a pLCW with a previous claim.  For example, if would be unfair to make you serve the 3 waiting days again if you’d already served them in a recent ESA award.  Whereas it would be odd if you could escape serving the waiting days simply because you’d been on credits for a while. 

Phil Cole - 20 June 2013 01:25 PM

What Reg 7(2) of the ESA (Existing Awards)(No 2) Regs 2010 appears to do is that if a person migrates to ESA the existing award (IB or IS) is taken to satisfy the condition set out in 1(3)(a) of the 2007 Act - which is the condition of Limited Capabilty for Work. So allows contribution conditions for years prior to year that went on IB to count in order that ESA (c) can be paid… It’s done that way because it isn’t linking to prev years NI contributions by receipt of (or entitlement to) a benefit, but to LCW

Therefore anyone converted did have LCW for the period they were on IB/IS ..

Phil, with respect, that’s not correct (I appreciate you qualify your comments with “appears”).

Reg 7 concerns someone who is already receiving ESA when their IB or IS comes up for conversion.  It allows someone to be deemed as having LCW re the conversion decision, ie without having to sit, at least the LCW test of the WCA.

Phil Cole - 20 June 2013 01:25 PM

Also the ramification of linking in this way is that if a person is on ESA C (in WRAG) then the claim ends due to 365 days, and their condition later deteriorates so that they would qualify for the support component, there should be a way to link their claim. I believe this can be done through continued LCW

I thought about that potential anomaly before my last post. That’s why I suggested the new ESA might be able to link to the converted ESA and take advantage of the fact that the converted ESA award was a contributory one.  But the new claim would have to link under Reg 145(1) to fall within Reg 16(1A) of the Conversion Regs.  The argument’s a long shot but there’s at least a legal basis for it.  There appears no legal basis, with respect, for suggesting, effectively, that a pLCW can link with period of incapacity for work (PIW).

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Altered Chaos - 20 June 2013 01:51 PM

..The issue I have is that the client was not in the UK at all during the 12-week linked period, so even if I could show she was in a pLCW she could not make a valid linked claim for ESA because a basic condition of entitlement is that the claimant is in Great Britain?!

My frustration is with the incorrect advice given by JCP when the client called to check her position before she left. A complaint is in order but this will not remedy the loss of ESA.

That clarifies things.  I agree, it’s too late.  I respect Phil’s attempts to salvage it but, sometimes, I think we have to accept it’s not possible.

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I’m not for letting go that easily.

The new claim can be backkdated to the day the claimant returned to UK using normal 3 month backdating.

Nowhere does it explicitly say that the person must be entitled to ESA for a period of LCW to be accepted, and I still think it’s worth it to put in the argument that even though the claimant was out of the country they nonetheless had Limited capability for Work, then appeal, and if necessary appeal to UT.

If we go on what DWP decison makers guides say then we’re truly lost, and there’s enough vagueness in these regs to at least build a case.

Tom - I see what you say about Reg 7, I was missing the odd situation where someone may have been on IB, lost it, appealed, claimed ESA, and then won their IB appeal (which is the only situation this could cover as in all other cases the existing benefit would preclude getting ESA), but there must be an equivalent link between ESA and IB to the one I imagined lurked in Reg 7…

Tom H
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Admire your tenacity Phil.  We’ll have to agree to disagree on the meaning of pLCW.  But even if you were right you realise that you’d have to find a way to link the converted CESA to the IB.  There’s Reg 8 ESA Regs which I don’t think applies on the facts here.  Reg 8 allows you to go back in time and use the Nics paid in any tax year that you worked rather than just the last two complete tax years.  So if Reg 8 applied she could have relied on, for ESA, the same contributions that she relied on to pass the 1st contribution condition for IB.  But there’s no other way as far as I can see.  Reg 13 ESA doesn’t apply.

[ Edited: 20 Jun 2013 at 08:23 pm by Tom H ]