By Karen Dunn, Specialist Benefits Advisor, Citizens Advice Staffordshire North and Stoke

Following a recent discussion around a case involving benefit entitlement it became apparent there was some learning to be shared regarding claiming the correct benefit when a previous ESA claim has stopped. Karen Dunn, specialist benefits advisor from the CAB tells us:

Getting income related Employment & Support Allowance (a legacy benefit) or Universal Credit while challenging a limited capability for work decision

If the person we are supporting has had their income related ESA claim stopped because of a ‘limited capability for work’ decision, it is often the case that we rush to help them make a new claim for ESA when this is not the best course of action. It can sometimes leave the customer with no money at all.

As part of the Welfare Reform programme, regulations concerning making a new claim for income related ESA when someone has failed the work capability assessment; failed to return the ESA50; or failed to attend/take part in the work capability assessment, came into force affecting all repeat claims made on or after 30/03/2015. Payment can now only be made in very specific circumstances.

Income Related Employment & Support Allowance repeat claim on or after 30/03/2015 following a work capability assessment failure.

• The person will not receive any payment while they are waiting for a new work capability assessment unless their condition has *significantly worsened, or they have a new health condition. If this is the case they should make a new claim but, the sick note will have to be very clear about any significant worsening.

• If they pass another work capability assessment they will receive payment. You can ask for an urgent assessment if the person is suffering financial hardship.

Income Related Employment & Support Allowance repeat claim on or after 30/03/2015 if failed to return the ESA50 or attend the work capability assessment

• The person will receive payment only if their condition has *significantly worsened, or they have a new health condition. If this is the case they should make a new claim but, the sick note will have to be very clear about any significant worsening.

• In any case they can receive payment after 6 months of being refused Employment & Support Allowance (i.e., the date of the limited capability for work decision). If they are still too ill to work after 6 months, they should make a new claim.

Income Related Employment & Support Allowance pending appeal (decisions made on claims made on or after 30/03/2015) – Please note this information does not apply to any decision relating to a failure to return the ESA50 or to attend/take part in the work capability assessment (see above)

• If it is the first time that the person has failed the work capability assessment or, it is the first time they have failed the work capability assessment since a previous decision that they satisfied it, they should receive payment in all cases.

• If it is the second or subsequent time that the person has failed the work capability assessment, they will only receive payment if their condition has *significantly worsened’ or they have a new health condition. If this is the case they should make a new claim but, the sick note will have to be very clear about any significant worsening.

*Department for Work & Pensions guidance for decision makers suggests that when considering ‘significant worsening’ the question to ask is, would they now pass the work capability assessment? However case law although not binding, disagrees (CE/4647/2013).

If the claimant decides to challenge the decision and ask the DWP for a mandatory reconsideration, they cannot get income related ESA while their request for a mandatory reconsideration is being considered. Before Universal Credit (UC), the person usually had the option of not claiming anything during this period, or claiming income based JSA until their appeal had been lodged with the Tribunals Service.

From 13th June 2018, if they live in a Universal Credit full service Stoke on Trent post code area, they will have the option of not claiming anything while their income related ESA (a legacy benefit) is being reconsidered or; making a new claim for UC.

If they claim UC they will have to agree to a claimant commitment as a ‘work seeker’ so, it would be important that they are supported when attending their first Job Centre interview so that the DWP work coach understands any restrictions and, that they are only claiming because they are challenging an income related ESA decision. If they then have to appeal the income related ESA decision they will remain on UC but the conditions will change, i.e. they will be treated as having limited capability for work for the life of the appeal. Once on UC they will remain on UC whatever the outcome, the only change will be to the conditions applied, e.g. work seeking or work related activity.

If the customer chooses not to claim any benefit while they wait for their entitlement to income related ESA to be reconsidered, for example they may have some PIP or other income, then once the appeal has been lodged with the Tribunals Service, they can go back on to income related ESA and it does not require a new claim to be made. However the DWP in some cases are saying that it does involve a new claim. This is arguably incorrect (see Social Security (Claims & Payments) Regulations, regulation 3(j)).

Example:

Amy lives in a UC full service area. She was getting income related ESA, but this stops when she fails the work capability assessment. Amy requests a mandatory reconsideration of the decision, and decides to claim income based JSA instead. As Amy has asked to make a new claim for income based JSA, she now comes under the UC system and must claim UC instead.

Amy then appeals and gets UC while her income related ESA appeal is pending. Amy’s appeal against the work capability assessment is eventually successful, but she remains on UC (with the appropriate limited capability for work/work related activity element) and does not go back to income related ESA. If Amy had decided not to claim income based JSA, once she had appealed she may have been able to get income related ESA pending her appeal instead of having to claim UC.

References:

Decision Makers Guide Volume 8, Chapter 42, Limited Capability for Work and Limited Capability for Work Related Activity, 42400-42429; Upper Tribunal decision CE/4647/2013; Social Security (Claims & Payments) Regulations, regulation 3(j).