ESA two benefits or one?

My client is a single parent.  She was on IS a lone parent of a child aged 3.  Became ill and DWP advised her to claim via JCP helpline.  DWP never paid her any ESA just NI credits stating she only claimed ESACB via helpline.  Client says she claimed ESA as one benefit and would not have known the difference or eligibility criteria for ESA CB or ESA IR.  Now gone to appeal and awaiting a Hearing date.  Does any one know of any case law that may support my client in her appeal?

Jol - 29 October 2013 03:37 PM

Hi - I found this argument helps.

Section 1 of the Welfare Reform Act 2007 reads as follows:

1.-(1) An allowance, to be known as employment and support allowance, shall be payable in   accordance with the provisions in this Part.
(2) Subject to the provisions in this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and either –
(a) the first and second conditions set out in Part 1 of Schedule 1 (conditions relating to national insurance)…or
(b) the conditions set out in Part 2 of that Schedule (conditions relating to financial position)

Section 6 of the Welfare Reform Act 2007 reads as follows:

(5) Where the amount payable to the claimant by way of an employment and support allowance exceeds his personal rate, the allowance shall be taken to consist of two elements, namely –
  (a) an amount equal to his personal rate, and
(b) an amount equal to the excess.
(6) The element mentioned in subsection 5(a) shall be treated as attributable to the claimant’s entitlement to a contributory allowance.
(7) The element mentioned in subsection 5(b) shall be treated as attributable to the claimant’s entitlement to an income related allowance. 

We submit that this makes it clear that ESA is one benefit with two elements; the word ‘element’ is used in Section 6(5). ESA is demonstrably not two separate benefits; there is simply no basis in the law for such an assertion.

Try arguing that the treatment of ESA as two benefits is simply a hangover in DWP culture from the days when IS on the grounds of incapacity for work and IB were two separate benefits. It’s DWP culture that is the problem, not the regs, although I reckon a Tribunal will be more sympathetic to that argument than the DWP!

Cheers

Jol

I argued this and won before.

in my case the claimants appointee did not tick the box to say she wanted to claim income related ESA (client had sdp entitlement) and dwp refused to backdate to date of claim.

Thanks Jol