Q&A: Employment and Support Allowance

Essie Rashidschi joined our our discussion forum in July 2012 for a question and answer (Q&A) session, answering your questions on Employment and Support Allowance (ESA).

Note that this information is up to date as of July 2012. It still contains useful information, however, for anyone claiming Employment and Support Allowance.

For the latest updates, see our information on changes to benefits in 2013.

If you're affected by these issues you can call our helpline 0808 800 0303 and speak to our benefits adviser.

Introduction

Hello and welcome to the Q&A. My name is Essie Rashidschi and I have been advising and teaching in the field of welfare rights for over 22 years.

During the time I have been working in this area, there have been many changes to the benefit system and to the conditions that people have to meet to prove that they are entitled.

One of these changes has been the introduction of Employment and Support Allowance (ESA) in October 2008. The government plans to eventually transfer everyone who receives Incapacity Benefit, Income Support and Severe Disablement Allowance to this new benefit.

Earlier in 2012, new rules were introduced to decide whether people receiving ESA are able to work and therefore no longer entitled to the full benefit. These are tougher and more complex and so it's possible that people who received ESA before might not do so in the future.

These new rules and the requirements of the Welfare Reform Act 2012 have made deciding who is eligible confusing and difficult.

I will try to explain the changes and what the law requires now.

I can answer your questions with general information here but if you feel that you are affected by this, it's important that you contact the benefits adviser on the Parkinson's UK helpline 0808 800 0303.

What is Employment and Support Allowance (ESA)?

ESA or Employment and Support Allowance is the benefit you are paid if your ability to work is limited because of ill health or disability.

The benefit has 2 parts - contributory and income-related Employment and Support Allowance.

People who apply for this benefit will be given a Work Capability Assessment to test whether they have a 'limited capability for work'. This might include a questionnaire and a face to face assessment.

These will test whether an applicant can carry out a range of basic tasks like standing, sitting and reaching.

After the assessment, if it is decided that someone has limited capability for work they will be included in the Work-Related Activity Group.

People in this group have to meet stricter conditions to continue getting the benefit, such as taking part in work-focused interviews to prepare for work in the future.

If it is decided that someone does have a limited capability for work-related activity, they will be put into the support group. People in this category will get a higher rate of ESA and they do not have to do activities like work-focused interviews.

Some people may be told that they aren't eligible for ESA at all because they are fit to work. In these cases the person may have to apply for Jobseeker's Allowance instead.

If someone who has been assessed does not agree with the outcome, they can appeal this decision at tribunal.

Transcript of the session

Shona: If someone has ESA in the Work-Related Activity Group and they miss the appeal date and can't reapply for benefits as they won't have the stamps as were on ESA for 3 years and no other entitlement, can they ask for a review to the support group even though out of time for the 28 day appeal limit?

Essie: I'm not sure I can answer your question completely on the details you have given but I will try to clarify a few things. I hope this can shed some light on your questions.

Firstly, that the appeal time is not 28 days, but 1 month from the date of the decision, and a maximum of 13 months from that date. This applies to all social security benefit appeals.

Secondly, if you are refused ESA on a claim, or have been receiving it (perhaps along with the work-related activity component), and fail the medical assessment, you can't claim ESA again for 6 months after the decision to refuse you benefit, unless you either have a new illness, or your condition has worsened.

Under section 51 of the Welfare Reform Act 2012 the period (time allowed) that you can get contributory ESA (CESA) has been limited to 365 days, not counting the days you are or have been in the support group.

But, under section 52, you might be awarded CESA again if your benefit has only come to an end because of the time limiting - that is, the 365 days of eligibility have passed.

In these cases, you can still send in a medical certificate, if required, to be counted as having limited capability for work, and then, at some later stage, you ask to be put into support group and you past the test. In that case, there is no need to satisfy national insurance contribution.

I suspect that when you said 'stamps' in your query, you may have been raising the issue I have pointed out. If this is the case, you should seek advice from Citizens Advice or another agency, as it can become quite technical and confusing.

bubble x: I've read some of the details about the changes to ESA but I'm still unsure about our situation.

I was really shocked when my partner was told that he was entitled to ESA not through 'means testing' but national insurance contributions. He was placed in the 'support group'. We were so relieved as still have a mortgage.

My question is will national insurance ESA continue or is this something that will stop?

Essie: There have been some changes to the ESA since May 2012 when the Welfare Reform Act 2012 (WRA12) came into force. I'll try to outline these below.

Contributory ESA (CESA): This is based on the national insurance contributions (NIC) of the person claiming the benefit. It is not means tested (apart from some deductions from benefit if you receive certain types of income, for example an occupational pension).

CESA, as the rules stand at present, will continue to depend on national insurance contributions, unless section 52 of the WRA12 is engaged. I discussed this in my previous answer.

From 1 May 2012, ESA based on national insurance contributions will be paid for 365 days only. So, if a claimant has already been receiving CESA for 365 days on that date, then the benefit will stop.

The good news for you is that the new rules do not include days that a claimant has been in the support group towards the 365 days. Therefore, as long as your partner remains in the support group, he should continue to receive his benefit.

Income related ESA (IRESA): This is paid if the claimant does not have sufficient national insurance contributions. This type of ESA is means tested, where the 'family' income and capital is taken into account. If receiving IRESA, other 'sums', such as premiums and housing costs can be included in the amount paid. The amount paid is usually called the applicable amount (AA).

Sometimes, a claimant might only be entitled to CESA, but they may also have some liability for housing costs which cannot be included in CESA. But, as there is a liability for housing costs and it can only be included in IRESA (AA), the claimant might be awarded a combination of CESA (based on national insurance contributions) and IRESA (which pays the housing costs).

There are many rules that must be satisfied before IRESA is paid. One such rule is that the partner of the claimant must not work for more than 24 hours a week, not forgetting that as a means tested benefit, all wages will be taken into account unless there is some 'income disregard'.

So in your case, if you are not working more that 24 hours a week, it might be worth checking to see whether the amount of your income (after disregards etc) will allow your partner to get some housing costs through IRESA, in addition to his CESA.

saintly7: Hi. Having had to go through an 8 month tribunal to get in the support group, why have I been sent another questionnaire for work capability so soon?

Essie: Yes, it does seem strange.

Still, it is important that you complete and return the form.

Unfortunately, the law allows the decision-maker to ask you provide the necessary information to support your claim.

You will be sent a form called an ESA50. If you fail to provide a completed copy of this form without good cause you could be treated as not having limited capability for work. While you are appealing this decision, you would not have any benefit paid to you.

Dana: I have been asked to do a Work Capability Assessment, but I really don't know how I will get there at 9 in the morning.

I can't drive and my medication means I won't be up to getting the bus at that time.

Is there any way I can ask for this to be rearranged?

Essie: Under the ESA rules, you must attend a medical examination when asked to do so.

But clearly there are times that someone claiming the benefit will find it difficult to attend.

In your case, contact the medical service that sent you the notification to attend. You can either arrange a different time - maybe in the afternoon - or if you are too ill and unable to travel, ask if the examination can be done at your home.

If you want to get a taxi or minicab to get to the medical service, make sure that you speak to them about it first. You might be able to get a refund for these expenses.

Anonymous: I have been on ESA in the Work-Related Activity Group for almost a year and have been told that my benefit will stop due to the 365 days rule.

I still feel that I was wrongly placed in the Work-Related Activity Group and should have been in the support group.

Is there anything I can do?

Essie: Under section 51 of the Welfare Reform Act 2012, a new rule was introduced that came into force on 1 May 2012.

This rule provides that when someone is or has been on contributory ESA (CESA), from that date, they can only receive CESA for 365 days, not counting the days in the support group.

For example, if you were receiving CESA for a year before 1 May, it will end on that date. If not, it will end when the 365 days are completed. But, under section 52, there is one way of qualifying again for CESA, and only after the 365 days.

If you are still considered to have limited capability for work, either by submitting a medical certificate or by the Department for Work and Pensions (DWP) accepting that you have it, then at some stage after the benefit has stopped, you can ask the DWP to put you in the support group and if you pass the test, you can be awarded CESA.

You will also have to satisfy all other conditions, such as being in UK, being aged 16 and over, not having reached pensionable age etc.

There are other ways as well.

If you feel that you were wrongly put in the Work-Related Activity Group, you should appeal that decision within time, normally within 13 months of the decision.

If it has been more that 13 months since the decision was made, then the only options would be to request a revision based on an error of law or to ask for a supersession due to a change in circumstances.

Requesting a revision based on an error of law is difficult. But if you are successful, you will receive the full backdated monies for the support component.

In the case of a supersession, you will only get the support component from the date you applied for supersession.

Again, this area is complex and you would probably benefit from contacting Citizens Advice or the Parkinson's UK helpline 0808 800 0303 to fully discuss your case.

Laura: I am worried that if I am having a good day when I attend my work capability assessment, they will assess me as fit for work.

How can I show that my condition can be different and that I am not that well every day?

Essie: I can see how this may be a worrying issue, because it is subjective and can be a complex matter to deal with.

There is a lot of case law on this issue, each case having a certain point of view. But most agree that the assessment should not be a 'snapshot' of a claimant's condition. The approach to the assessment must be based on 'reasonableness'.

With Incapacity Benefit, this was reflected in the language such as 'I sometimes cannot do x'. Unfortunately, this was not brought into the ESA form.

Still, the courts have held that the reasonableness approach does exist for the ESA assessment, and the medical examiner should bear that in mind. What this means in practice is, if a claimant cannot do an activity reasonably without pain, stress and fatigue or repeatedly, then that question should be satisfied.

The new assesment test for ESA states that medical examiners have to take into account fluctuations that individuals may experience in their capability.

A problem may arise when claimants have a condition which is varying, intermittent or sporadic. If you are in that group, seek advice from Citizens Advice or another adviser.

Finally, make sure that your doctor, either on a Med 4 certificate or in writing, explains the situation fully before you go for a medical assessment.

Anonymous: As Parkinson's is a fluctuating condition, how can I show this on the ESA50 (limited capability for work) form?

Essie: On the ESA50, there is a space for you to explain how your Parkinson's changes and fluctuates.

It would be helpful if you could mention, if this is the case, that you cannot reasonably carry out an activity repeatedly or without pain or fatigue.

It is also important that your doctor provides as much information as possible about your fluctuating condition.

It is important to note that a claim form is a legal document. If you are refused a benefit and appeal against it, this form will make up a part of the evidence that will be before the first tier tribunals or the superior courts. So, the more information it contains the better it is for the case.

If you have run out of room on the claim form, write it out on paper and attach it to the claim form. It's all about the facts of your condition and the application of law (ESA regulations and case law) to those facts.

Give clear and complete account of the facts of your case. With this account, it will be easier for decision makers, including the courts, to come to a just conclusion.

Robert V: I have clients who are clearly too ill to go through the stress of having to get to the assessment centre but no one ever seems to be told about the possiblity of a home assessment.

What advice do you have?

Essie: People who receive a notification of attendance for a medical test must attend. Otherwise, they will be deemed as not having limited capability for work.

If that happens, and the claimants appeal the decision for 'good cause', they will not receive any ESA whilst awaiting the hearing of the appeal. This is different to other types of appeals.

During the appeal period, the person claiming would have to rely on other benefits such as Jobseeker's Allowance.

But claimants are sometimes too ill or sick to attend the medical examination. In these cases, they (or someone on their behalf) must contact the medical service and either:

• arrange for another date
• arrange to be examined at home in cases where illness makes travel impossible or travel could make their physical or mental health worse

In these circumstances a letter of support from a carer, GP or consultant would be necessary to explain why an examination should be postponed or held at home.

In cases where the claimant is travelling by taxi, minicab or even having a friend drive them, they must ask the Department of Work and Pensions (DWP) ahead of time if they would like the costs of travel or petrol refunded. Where they do not receive permission in advance, the DWP may refuse the refund these costs afterwards.

Anonymous: Is there a way to get ESA without having to complete the ESA50 and go through the medical examination?

Anonymous: I have been suffering with Parkinson's for some time and as I am getting older my health is also deteriorating.

I have been receiving ESA, which was awarded after I failed the test following a medical examination, and appealed.

Shortly after the appeal, I received yet another ES50. Is there anything I can do to stop the ESA50, and also not to go to the medical examination?

Essie: The first thing for both of you to bear in mind is that whether you are in the Work-Related Activity Group or the support group, if you are sent an ESA50, it must be completed and returned.

You must also attend a medical examination if asked to, unless you have a good cause for not attending. (Note that if you are refused ESA because you failed to attend a medical examination without good cause, you will not continue receiving the benefit while you appeal this decision.)

However, as ESA can be awarded on two grounds, the information which you provide on the ESA50, can be very helpful to you.

Grounds for an award of ESA:

• (a) By passing the test for limited capability for work, that is, satisfying certain 'descriptors', describing similar tasks of varying difficulties or by being 'treated' as having passed the test. In either case, you will be placed in the Work-Related Activity Group
• (b) Having passed the above test, then by passing the test for limited capability for work-related activity, that is satisfying just one descriptor from a set of them, or by being 'treated' as having passed the test. In either case, you will be placed in the support group.

Therefore, the function of ESA50 is to provide as much information to enable a decision maker to decide whether you pass the test, firstly by establishing if you satisfy the 'descriptors', and then to see if you can be 'treated' as having passed.

In most cases you will be asked to attend a medical examination, athough if you have provided as much information as you can in the ESA50, the decision maker may decide that you would pass the test, without requiring you to attend a medical examination.

What does 'treated as' actually mean?

Under the ESA rules, for both the Work-Related Activity Group and the support group being 'treated' as having passed is defined as follows:

'The claimant suffers from a specific disease, or bodily or mental disablement, and by reason of such disease or disablement, there would be a substantial risk to the physical or mental health of any person, if the claimant were found not to have limited capability for work.'

So the more information you give the better. You can do this by supplying a full account of your illness on the ESA50 along with any other supporting information from a carer, GP or other sources. This should be sent to the decision maker, and not the medical examiners.

This rule could be very relevant to people with Parkinson's, especially where the travel involved in getting to and from work makes life much more difficult. Decision makers should take this into account when considering your case.

Note that this information is up to date as of July 2012, but still contains useful information for anyone claiming Employment and Support Allowance.

If you're affected by these issues you can call our helpline 0808 800 0303 and speak to our benefits adviser.

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