Credits Only ESA

Helen Rogers - 24 September 2013 07:59 AM

A “credits only” claim for ESA means that the DWP accept that you have LCW, but you don’t meet the means test for income based ESA and you don’t meet the criteria for payment of contribution based ESA (eg you haven’t paid enough NI conts.)

Helen

Just read your post again.  I overlooked that you actually clarified what you meant by “credits-only”.  It’s similar to, if not exactly the same as, what I call a “day of LCW”.  In that sense, I also understand why you feel that discussing how credits are awarded is getting bogged down in technicalities.  I actually agree.  Whether or not someone is eventually awarded credits under the legislation is really a red herring here.

The important thing is that we agree that a person can continue having LCW after their partner starts work. 

We disagree about the effect of that LCW where the person subsequently qualifies again for ESA when the partner stops working.  You think that the original income-related ESA award stays open because entitlement was still there (just the right to payment ceased).  And because entitlement was still there, you say “so [an] ESA3 is required because there is a change of circumstances” (ie, the partner ending work).

But that cannot be right, with respect. 

First because it ignores the fact that an essential condition of entitlement is that your partner does not do remunerative work (I’m reluctant to start quoting the specific legal provision which states that because it seems that when you start quoting law it sends people to dark places).  Entitlement cannot be “there” if you do not meet an essential condition of entitlement.

Second, because it seems to confuse having LCW with having entitlement.  In your earlier post you stated that it would be different if the claimant herself started work.  In that situation, you feel that her entitlement would end and if she subsequently stopped work she’d have to make a new claim on an ESA1.  As we know, a person who works (unless it’s permitted work) is treated as not having LCW.  You feel her entitlement ends because she no longer has LCW.  It’s as if you equate having or not having LCW as the only essential condition of having or not having ESA entitlement.

But LCW is not the only condition of entitlement.  The partner not doing remunerative work is just as much a condition of entitlement as having LCW is.  Consequently, the original ESA does end.  And a new claim must be made, irrespective of whether the resulting new award links with the old one. 

The question whether they do link is simply a question of whether there is 12 weeks between their respective pLCWs.  If yes, they link and the Support Component could start from day 1 of the new award – Reg 7 ESA Regs (you see, I’m quoting law again).  Under Reg 7 the assessment phase of the new award doesn’t have to end before the component can start being paid again.

In benefit advisor’s case, there is more than 12 weeks between May and Sept so the pLCWS do not link.  Nor can she rely on the more generous linking rule provided by section 1B which I quoted in my last post.  That’s because her ESA is income-related (was and still is) whereas section 1B is concerned with time-limited contributory ESA.  So, again with respect, there should be 3 new waiting days and a 13 weeks’ assessment phase before she gets the support component again. 

But if the DWP want to issue an ESA 3 and pay the SC from day 1 of the new award, good on them.  And benefit advisor (if you’re still reading this thread), like I said, “no fuss”.

Tom H - 24 September 2013 03:30 PM

What 26 week test?

the one where the claimant must have paid 26 weeks worth of ni in the relevant tax years.

I had a search on the other threads.  can I attempt to summarise your argument in a way I understand it tom?

are you basically saying that after the 365 days entitlement ends but lcw does not so this would mean that a person who retains lcw would need to make a new claim at a later date but as they retained lcw they would satisfy the contribution conditions?

I appreciate I might have you going around in circles but if this is the case I need to fully grasp it myself to explain it to clients and the dwp if needed.

Reading Toms post i got confused as he refers to a question that I never asked.
Looking further it appears that there are 2 members of Rightsnet here with VERY similar names.
There be TWO Benefitsadvisers! Thought i was going a bit Cuckoo!

stevenmcavoy - 26 September 2013 09:07 AM

are you basically saying that after the 365 days entitlement ends but lcw does not so this would mean that a person who retains lcw would need to make a new claim at a later date but as they retained lcw they would satisfy the contribution conditions?

Yes.  LCW doesn’t end unless you fail the WCA or you fail to attend a medical, or the claimant starts doing remunerative work (or any of the other ways you can be treated as no longer having LCW). So in time-limiting cases the LCW continues because the only thing that ends the entitlement is the time-limiting rule itself.

There are two ways to re-start your contributory ESA after it’s been time-limited.  Either:

(a) you satisfy the contribution conditions including a later tax year in respect of the 2nd contribution condition, or

(b) you satisfy section 1B which the DWP call the “deterioration route”

However, the deterioration route does not = satisfying the contribution conditions.  In fact, people rely on it precisely because they do not satisfy the contribution conditions.  It is a deeming provision.  It effectively treats you as having satisfied the contribution conditions even though you don’t satisfy them in reality.

And yes it’s a new claim in the above circs because the old one has ended.  It is settled caselaw that you can only do a supersession based on change of circs where there is a continuing award of benefit that can be superseded.

There were two TomHs on here once as well, the other one from Sheffield, which freaked me cos I lived there once.  Always felt I’d left a part of me behind there too.

Can I rekindle this old thread.

I would like to run a scenario past everyone. I have a client who I believe may be missing out on the SDP- she was on IR ESA (I believe at WRAG level) but this is no longer in payment after receiving IIDB which is counted as income and was more than the ESA that she was getting. So no ESA in payment.

She is also receiving the standard rate daily living rate of PIP.

If she is single and no one is claiming CA for her she is entitled to the SDP- this I thought would mean she would now be entitled to the SDP and ESA would come back into payment.

Now would this happen if she were to ring the DWP and inform them that they had been missing out on the SDP- or does she have to make a new claim for IR ESA- which would have to be UC? If she is getting the SDP on her HB that would not happen though.

I was thinking that the ESA claim- would run on as a credits only claim and could be restarted in such a scenario as above- but is this the case? From reading this thread I am not sure. Some clarification around this would be much appreciated as the thread did not seem to clarify the issue about a credits only ESA claim and if it can be restarted?

Cheers!

I wasn’t clear from your post whether they were on housing benefit? If they are they can get the sdp in that which will then enable them to claim irESA. As I understand it a new claim is needed - getting NI credits is not a claim for benefit - so if no HB then cannot do a irESA claim now.

I guess the only thing is did she meet the sdp criteria when they stopped the irESA - in which case maybe you could do an anytime revision of the decision to stop that depending on the circumstances?

Daphne - 17 April 2019 12:29 PM

I wasn’t clear from your post whether they were on housing benefit? If they are they can get the sdp in that which will then enable them to claim irESA. As I understand it a new claim is needed - getting NI credits is not a claim for benefit - so if no HB then cannot do a irESA claim now.

I guess the only thing is did she meet the sdp criteria when they stopped the irESA - in which case maybe you could do an anytime revision of the decision to stop that depending on the circumstances?

Thanks Daphne. Just needed some clarification around this issue. Much appreciated.

I’m picking up on some of the previous posts in this thread and checking I’ve understood correctly -

My clients are a couple where Mr works 24 hours a week self-employed; they have a child and claim CB CTC WTC HB CTR. Mrs is unwell and has not worked enough to receive ESA-C; she claimed but partner says her claim was refused in payment on the basis of not meeting the contribution conditions. Partner is in remunerative work so on that basis she does not meet the ESA-IR conditions for payment either.
However, I can see from ATLAS notification from the DWP on the HB system that ESA SC has been awarded to her. The HB assessor hasn’t altered the claim to include the SC in the calculation. If I understand earlier posts, depsite no entitlement to payment of ESA either on a means-tested or contributory basis, the SG entitlement still stands? in theory the SC and EDP should be included in the HB applicable amount? (CPAG p.342)

Also - my involvement is a PIP tribunal for Mrs which is listed for next week. If this succeeds then DP would be included in HB applicable amount. My understanding is that where someone has an LCW/RA determination, this ‘trumps’ the DP (CPAG p. 332)

Also ... if Mrs does have a SG/LCWRA determination (albeit no actual claim for ESA) then this also raises the possiblity of a better off on UC scenario. Although, given the self-employment, English as a 2nd language and whether or not UC would understand the above, I would be cautious in advising them to claim UC…

The HB rules for couples where just one of them is on ESA or has LCWRA are ludicrously complicated, especially if they also have PIP.  It’s bad enough if they don’t have PIP.  To summarise:

No PIP or equivalent

1. If either the HB claimant or the HB partner has LCWRA, the applicable amount includes the Support Component
2. If the HB claimant only (not the partner) has LCWRA, the applicable amount also includes the couple rate EDP

With PIP etc

1. If the HB claimant personally has LCW (with or without LCWRA), the HB applicable amount never includes the Disability Premium and the LCWRA component would “trump” the disability premium.  On the face of it, the premium is higher than the component, but see note 2 above: this way round they will also get the EDP
2. If the HB claimant does not personally have LCW, the couple rate disability premium “trumps” the LCWRA component.
3. As for EDP, you cannot qualify for that through LCWRA if the HB claimant is not the one with LCWRA; but if the rate of PIP would be sufficient to get the EDP anyway (must be enhanced DL), then the EDP is awarded irrespective of who is the HB claimant.  That would make couple rate DP plus EDP the “better buy”.

If your clients are configured in a less advantageous way under the above rules, they cannot unfortunately do the old switcheroo anymore because the partner who is not currently the HB claimant will be prevented from making a new HB claim.

That’s really helpful, thanks - it’s a bit more complicated than I thought.
So at the moment, as the HB claimant is not the sick one, they should get SC in HB applicable amount. If PIP tribunal succeeds, couple rate DP trumps the SC, and may also get EDP if ERDL is awarded.

No possiblity of switcheroo, unless the switcheroo is to UC ... clients would be seriously better off on UC with the LCWRA element so if anyone has experience of LCWRA being awarded in UC despite nil payment of ESA as claimant doesn’t meet C or IR conditions, I’m all ears (albeit bit concerned about the self-employed aspect).