no entitlement to ESA

Can someone let me know if I missed anything obvious here?

Single parent looking after very disabled son. Had been on IB for years, transitioned to ESA (WRAG - no entitlement to SG) and had 365 days of CB benefit. About 1 month after that he was found fit for work. Was advised to claim Carers Allowance instead of pursuing appeal, which he did. Also has an occupational pension following early ill health retirement.

Sadly his son died, His CB, CTC and CA all end on 28/10/13. I cannot see anyway of getting him back onto CB ESA as he just does not meet the first contribution condition. No meants tested entitlement due to pension. Same with JSA. He doesn’t seem to meet any of the exceptions.

Any bright ideas?

J Hogg - 01 October 2013 12:46 PM

Can someone let me know if I missed anything obvious here?

Single parent looking after very disabled son. Had been on IB for years, transitioned to ESA (WRAG - no entitlement to SG) and had 365 days of CB benefit. About 1 month after that he was found fit for work. Was advised to claim Carers Allowance instead of pursuing appeal, which he did. Also has an occupational pension following early ill health retirement.

Sadly his son died, His CB, CTC and CA all end on 28/10/13. I cannot see anyway of getting him back onto CB ESA as he just does not meet the first contribution condition. No meants tested entitlement due to pension. Same with JSA. He doesn’t seem to meet any of the exceptions.

Any bright ideas?

off the top of my head and with no reference to the books but can the fact he was a carer not be used to relax the first test to include any year he paid conts?

If he only started claiming CA after 6/4/13 then, whilst Steven’s right about CA acting as a relaxation of the first contribution condition, the earliest he could re-qualify for contributory ESA based on that rule would be w/c 4 Jan 2015, ie the start of benefit year 2015.  And even then it seems that tax year 2013/14 would not satisfy the 2nd contribution condition for such an award.  That’s because without credited earnings derived from CA, LCW, or CB it’s difficult to see how he’d satisfy the 2nd condition (but see below).

If he failed the WCA one month after his contributory ESA was time-limited then, strictly speaking, there is no right of appeal at present as the failed WCA is simply a determination made under Reg 19 which, as a determination, is not appealable.  In practice, though, if he late appeals as Tony suggests then the DWP are unlikely to question whether he has a right of appeal and instead focus on whether he has grounds for lateness.  If appeal is admitted late then it would be worth pursuing even if there is no chance of getting him into SG.  It’s crucial to get the Reg 19 determination overturned otherwise he’d lose the opportunity to rely on the rule (section 1B WRA 2007) that allows any future ESA award that includes the SC to link back to the time-limited decision and, therefore, to be contributory ESA also.

An alternative, provided it is less than 3 months since his failed WCA, would be to make a new claim for ESA immediately asking for it to be backdated to a date including the date of the failed WCA.  I would then appeal the outcome decision refusing to award ESA on that new claim and ask the tribunal to overturn the above Reg 19 determination.  Again, that would at least keep alive his section 1B rights as above even if the tribunal refused on this occasion to put him in the SG. 

If a late appeal was not admitted and it’s presently been more than 3 months since the failed WCA, then a final opportunity to appeal the Reg 19 determination becomes available from 6/4/14 when the claimant could ask the DWP to award him sufficient credited earnings based on having LCW for the tax year 2013/14.  The DM would be likely to refuse due to the failed Reg 19 determination.  That decision refusing credited earnings (ie “credits”) would be appealable (after a possible mandatory reconsideration period - we don’t at this stage know if the DWP are going to be benevolent enough to leave out the MR notice from credits outcome decisions).  Winning this appeal would also keep open his chances of being able to claim contributory ESA again from 4/1/15, eg, based on the above Ca relaxation rule, as restored credits would make 2013/14 satisfy the 2nd contribution condition for such an award.

Hopefully im not talking rubbish….but cant a conts based JSA claim be made - do they not ignore any period of LWC when assessing a conts based JSA claim and so the same conditions which allowed the original IB claim would allow him to be paid conts JSA. (I have a client who went from conts ESA then 365 day rule hit, claimed conts JSA and then back to conts ESA straight on the back of one another).

Question is, does the gap between ESA ending a JSA claim in your example prevent this from happening?

Or am I just totally wrong?