Employment and Support Allowance

Transcription

1 Employment and Support Allowance Training Handbook (November 2014) This training pack is for guidance only and is not a complete or authoritative statement of the law. This handbook was produced for advisers working the Royal Borough of Kensington and Chelsea. Some information may not be applicable elsewhere in the UK. Copyleft notice This document is released freely; you can redistribute it and/or modify it for noncommercial purposes as long as you credit Advice Now Plus and the Author of this work. This work is distributed in the hope that it will be useful, but without any warranty.

2 Table of Contents About Employment and Support Allowance... 3 The Work Capability Assessment... 5 Carrying Out The Work Capability Assessment... 8 Contributory ESA: the contributory test Income-related ESA: the means test ESA Amounts Working While Claiming ESA Making A Claim Challenging Decisions November

3 About Employment and Support Allowance Employment and support allowance (ESA) is a benefit paid to claimants whose ability to work is limited by an illness or disability. Key information There are two types of ESA: contributory ESA is based on national insurance (NI) contributions and non-means-tested; and income-related ESA which is means-tested but does not require any NI contributions history The claimant may receive either one of these, or both together, depending on her circumstances Entitlement to ESA is assessed under a medical test called the work capability assessment ESA is administered and paid by Jobcentre Plus, an agency of the Department for Work and Pensions. The qualifying rules for ESA To be entitled to ESA, the claimant must: have limited capability for work be at least 16 years old be under state pension age satisfy the residence and presence tests (see below) not be entitled in her own right to statutory sick pay, income support or jobseeker s allowance (JSA) and is not part of a couple that is entitled to jointclaim JSA; and not be in work (but some types of work are allowed - see pages 18-19). To be entitled to contributory ESA the claimant must also pass the contributions test. To be entitled to income-related ESA, she must also pass a means test. (See pages 13 and 15). Residence and Presence Tests To claim income-related ESA the claimant must: be present in Great Britain; satisfy the habitual residence test ; and have the right to reside in the UK. To claim contributory ESA the claimant must be present in Great Britain. Present means physically present in Great Britain. There are rules that may allow the claimant to be treated as present during a temporary absence. November

4 The term right to reside is not defined but is dependent on the claimant s immigration status and nationality. She might have a right to reside under UK rules, European Union law or because she is a British citizen. The habitual residence test is used to determine if the claimant normally lives in the UK, the Channel Islands, the Republic of Ireland or the Isle of Man. There is no legal definition of 'habitual residence'. Relevant factors are where the claimant normally lives, where she expects to live in future, her reasons for coming to this country, the length of time spent abroad before she came here, and any ties she still has with the country that she came from. Students Full-time and part-time students who meet the contribution conditions can claim contributory ESA. Full-time advanced or non-advanced students can get income-related ESA only if they are getting disability living allowance, personal independence payment or armed forces independence payment. Any part-time students can claim income-related ESA if they pass the means test. November

5 The Work Capability Assessment The ESA work capability assessment is used by the decision maker (DM) at Jobcentre Plus to determine whether or not the claimant has, or can be treated as having: 1) limited capability for work ; and 2) limited capability for work-related activity. There are two distinct tests to determine each of these, although they are looked at together as part of the same assessment and decision-making process. The claimant undergoes the assessment when she makes a fresh claim for ESA, and again at intervals during her ongoing claim. The assessment phase Claimants making a new claim for ESA normally have to go through a 13-week assessment phase. During this phase she should undergo the work capability assessment (see below). However delays are common in the ESA assessment system so a claimant s assessment period may well be longer than 13 weeks. Claimants are paid at least the basic rate of ESA during the assessment phase (see pages 16-17). The assessment phase will not be applied to a claimant who is terminally ill or who is reclaiming ESA within 12 weeks of an earlier claim, and had already completed the assessment phase during that claim. While awaiting her assessment a new ESA claimant has to provide ongoing evidence of her limited capability for work. This is normally provided in the form of a Statement of Fitness for Work, commonly called a fit note. These are usually provided by a GP or other registered medical practitioner. However evidence of the claimant s limited capability for work can be accepted other than on an approved form and/or from a registered medical practitioner if: it is unreasonable to require a doctor's statement and the evidence shows that the claimant is unfit for work because of a disease or disablement. It is important that a claimant provides up-to-date medical certificates, or other appropriate evidence, when required as her ESA claim will be suspended and eventually closed if this is not supplied, including where it is not provided after the old certificate has expired. November

6 The limited capability for work test The limited capability for work test decides whether or not the claimant can either remain on ESA after the assessment period, or stay on ESA if the person is an existing claimant having to undergo a further work capability assessment. The test assesses her ability to carry out a range of activities that are physical, and 'mental, cognitive and intellectual'. The physical activities The physical descriptors in the limited capability for work test are grouped under ten activities: 1) Mobilising 2) Standing and sitting 3) Reaching 4) Picking up and moving or transferring 5) Manual dexterity 6) Making yourself understood 7) Understanding communication 8) Navigating and maintaining safety 9) Absence or loss of control of the bowel or bladder 10) Consciousness during waking moments. The mental, cognitive and intellectual activities These descriptors are grouped into seven types of activity: 11) Learning tasks 12) Awareness of everyday hazards 13) Initiating and completing personal action 14) Coping with change 15) Getting about 16) Coping with social engagement 17) Appropriateness of behaviour with other people. For a full list of activities, descriptors and points see Appendix 1. Points based test The test is points-based. Points are awarded on the basis of any limitation the claimant has in carrying out each activity and totalled up. If the total reaches 15 points or more, the claimant passes the test and can remain on ESA. Within each type of activity there is a list of descriptors, with scores for each descriptor ranging from 0 to 15. The descriptors describe related tasks of varying degrees of difficulty. For example under the activity Manual dexterity descriptor C is: [claimant] cannot use a pen or pencil to make a meaningful mark with either hand. November

7 The claimant would score 9 points for being unable to carry out this task. The claimant gets points if she is not able to perform the activity described. Although more than one descriptor may apply within each activity the claimant can only pick up points for whichever is the highest scoring descriptor that she meets. A claimant may pass the test by scoring 15 points in any one activity, or by adding together points totalling 15 or more scored across different activities, in the physical and/or the mental/cognitive parts of the test. The assessment takes into account the claimant s abilities when using any aid or appliance she would normally use, or could reasonably be expected to use. The expectation is that the claimant should be able to undertake the tasks of a particular activity most of the time. This means that if she is unable to undertake a descriptor with a reasonable degree of regularity then she should be treated as though she is unable to perform that particular descriptor. The severity of a person s condition, the frequency of good and bad days and the unpredictability of the bad days are all relevant factors. Issues of pain (including breathlessness, nausea and dizziness) and fatigue/tiredness should be considered. The claimant should be treated as though she is unable to perform a descriptor if she cannot do so without too much discomfort. Any risk to health in the performing of a descriptor should be taken into account also. If the risk is sufficiently serious the claimant should be treated as though she cannot undertake the descriptor. For the claimants who can be automatically treated as having limited capability for work in certain circumstances please see Appendix 2. Limited capability for work-related activity test The limited capability for work-related activity test is used to determine whether or not the claimant is placed in the support group of claimants or the work-related activity group (see below). Placement in one of these groups determines both which additional ESA component that the claimant receives, and whether or not she must take part in any interviews or activities in order to remain entitled to the benefit. The test of limited capability for work-related activity has a list of activities and descriptors, relating to physical, and mental, cognitive and intellectual functions. If the claimant satisfies at least one of them, she will be placed in the support group of claimants. Note that the descriptors used are exactly the same as some of the highest scoring descriptors (ie 15 points) that apply within the limited capability for work test. The list of activities and descriptors to determine limited capability for work-related activity Appendix 3. The claimant can be treated automatically as having a limited capability for work-related activity in the circumstances described in Appendix 4. November

8 Carrying Out The Work Capability Assessment In order to apply the two tests described above, a DM from Jobcentre Plus first looks at the information that the claimant gives in her initial ESA claim to see if she can be treated as having limited capability for work. For example the claimant may be terminally ill. Written questionnaire If the DM considers that the claimant cannot be treated as having limited capability for work, she is sent a Limited Capability for Work Questionnaire - form ESA50 - to complete. This form has a number of questions relating to each of the activities in the limited capability for work assessment. Each activity has a section with tick-boxes and a space to provide more detailed information about the difficulties that the claimant faces. The time limit for completing and returning the ESA50 is four weeks. Once the DM has received the completed ESA50 they may decide that there is clear evidence that the claimant has limited capability for work (and limited capability for work-related activity). Tips on helping clients to complete Form ESA50 Have a copy of the Work Capability Assessment legal tests available when completing the form, especially the activities and descriptors of the limited capability for work and the limited capability for work-related activity assessments. NB the wording of the questions in the ESA50 is slightly different to how they are written in the legal regulations. (See appendices.) The claimant should try to list all relevant physical and or mental disabilities. The claimant should explain if she has good and bad days. If she ticks a box that indicates that the need for help on a particular activity varies. Consider and explain where the claimant s ability to perform each activity varies. The claimant should state where she cannot perform an activity repeatedly, safely or reliably, or if it would take her an unreasonably long time to complete it. The claimant should explain any pain, tiredness or discomfort that she would feel in completing an activity. Note that the claimant is assessed as if she is wearing or using any aid or appliance which is normally used or warn eg walking stick, glasses. November

9 Face-to-face assessment If the DM cannot decide in the claimant s favour on the basis of the ESA50 (and any other available evidence eg doctor s report), she will be sent an appointment to attend a face-to-face assessment carried out by a healthcare professional (HCP) who currently is employed by Atos Healthcare, the private company contracted by DWP to carry out the assessments. As mentioned previously due to the length of times that assessments are taking, the claimant may have to wait some time after returning her ESA50 before she is given an appointment for the medical assessment. The claimant can bring a companion such as a relative, friend or carer. That person may be able to help with giving information, but the claimant will usually be expected to help to answer any questions that the HCP has (including via an interpreter). Atos Healthcare guidance states that the claimant can bring additional, written information to the appointment. However anecdotally it appears that HCPs often tell the claimant that they are unable and/or unwilling to look at this. The HCP should have read a copy of the claimant s completed form ESA50 before seeing the claimant. At the face-to-face assessment the HCP will ask the claimant a series of questions, relating to both her physical and mental, cognitive or intellectual capabilities. Once they have finished this, they may give her a physical examination. Note that the HCP is very likely to be observing the claimant s behaviour both physical and mental/cognitive the whole time, from when they arrive at the examination centre and meet the HCP, until when the examination is completed and the claimant walks off the premises. The HCP then completes a report of the assessment, including their findings of the number of points scored across activities, and whether or not the claimant meets any of the exceptional circumstances (see below). This is sent to a Jobcentre Plus DM who makes the decisions both on whether or not the claimant has limited capability for work, and limited capability for work-related activity. The final decision is made by the DM. However it is common for the DM to broadly accept and follow the findings of the HCP and make a decision based on the medical assessment, especially regarding how many points have been awarded. If the claimant is found to have limited capability for work, the HCP will also make recommendations as to when the claimant should be re-tested under the work capability assessment. November

10 Exceptional circumstances Even if the DM decides that the claimant does not pass the limited capability for work test, they can still treat her as having passed it if one of the following exceptional circumstances applies. The claimant is suffering from: 1. A life threatening disease, in relation to which there is medical evidence that the disease is uncontrollable or uncontrolled by a recognised therapeutic procedure; and in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure or 2. Some specific disease or bodily or mental disablement, and [consequently] there would be a substantial risk to the mental or physical health of any person if she was found not to have a limited capability for work. This risk should be linked to work the claimant could realistically do according to her education or skills. This circumstance will not apply to the claimant if the risk could be significantly reduced by making reasonable adjustments to her workplace or by taking medication as prescribed. The Support Group If it is decided that the claimant has limited capability for work-related activity, she will be placed in the support group. Claimants placed in this group do not have to undertake work-related activities (although they can volunteer to do so if they wish) see below. Claimants in the support group also receive a slightly higher rate of ESA than those placed in the work-related activity group (see ESA Amounts, pages 16-17). People with a terminal illness (and who are therefore treated as having limited capability for work-related activity) can get the support component included straight away, before the assessment phase has ended. There is a 365 day time limit on awards of contributory ESA for claimants who are in the work-related activity group (see page 14). However claimants in the support group continue to get contributory ESA as long as they meet the relevant conditions to stay in the support group. November

11 The Work-Related Activity Group If it is decided that the claimant has limited capability for work only - but does not have limited capability for work-related activity - she will be placed in the work-related activity group (WRAG). Claimants in the WRAG receive a lower rate of ESA than those in the support group. People in the WRAG whose award of contributory ESA has expired after 12 months may then be able to get income-related ESA, subject to passing the means test. A claimant in the WRAG has to adhere to strict work-related conditions in order to continue receiving her benefit in full. The conditions may include attending work-focused interviews and taking part in work-related activity (see below). However she cannot be required, as part of work-related activity, to apply for a job, undertake work or undergo medical treatment. A claimant is not required to take part in work-related activity if she: is a lone parent with a child under the age of 3; or receives carer s allowance, or a carer premium in a means-tested benefit. Work-Focused Interviews and Work-Related Activity Claimants placed in the WRAG are required to attend work-focused interviews (WFI). These are intended to help the claimant to get closer to and keep in touch with the employment market. It has the following functions: to assess the claimant s prospects and assist or encourage her to remain in or obtain work; to identify activities, training, education or rehabilitation the claimant could undertake to improve her job prospects; and to identify current or future work opportunities that are relevant to her needs and abilities. At a WFI a personal adviser will discuss with the claimant her work prospects, the steps that she is willing to take to move into work and the support available to her. The adviser will draw up an action plan, which will outline the activities that the claimant could undertake to help her to move into work. The interview can be waived for claimants who are likely to be starting a job or returning to work. The personal adviser can also defer an interview if, because of the claimant s condition, it would be inappropriate at that particular time. There is no limit on the frequency of, or interval between, WFIs. As well as people in the support group, claimants who are lone parents responsible for a child aged under 1 year, or who have reached Pension Credit qualifying age, are not required to take part in WFIs. November

12 Sanctions and Reductions Claimants can be given a sanction for failing to take part in a WFI without good cause, or for failing to take part in work-related activity specified in their action plan when required to do so. If a claimant is sanctioned her ESA is reduced. The period over which the reduction is imposed is made up of two parts. The first part is open-ended and applies until the claimant meets the compliance condition required of her. The second part will be a fixed-period of between one week and four weeks, dependant on whether this is the claimant s first failure or if she has failed previously to meet a compliance condition. The reduction is a week, equivalent to the personal allowance of ESA for a single person. Claimants whose ESA is reduced can apply for hardship payments. A decision to impose a reduction can be challenged (see Challenging ESA Decisions, pages 21-22). Disqualification A claimant can be disqualified from ESA for up to six weeks if she: has limited capability for work through her own misconduct (but not if the limited capability is due to pregnancy or an STD). Misconduct is a wilful act, eg. recklessly and knowingly breaking accepted safety rules; does not accept medical or other treatment (not including vaccination, inoculation or major surgery) recommended by a doctor or hospital that is treating her but only if the treatment would be likely to remove the limitation on her capability for work and she does not have good cause for refusing; behaves in a way calculated to slow down her recovery, without having good cause; or is absent from home without leaving word where she can be found, without having good cause. In cases of hardship, the claimant s has a reduction to her ESA instead of disqualification. In such cases, a 20% reduction is made to her basic allowance (for contributory ESA), or her personal allowance (for income-related ESA). November

13 Contributory ESA: the contributory test A claimant must have paid enough national insurance (NI) contributions in specific tax years to satisfy the contributions test to get contributory ESA. There are two NI conditions. First condition: the claimant must normally have paid, or can be treated as having paid, at least 26 weeks worth of Class 1 or Class 2 NI contributions on earnings at or above the lower earnings limit (LEL) in one of the last two complete tax years before the start of the relevant benefit year. The LEL is 111 for 2014/15. Certain carers and low-paid disabled workers can satisfy this condition if they have paid, or can be treated as having paid, sufficient NI contributions in any tax year. Second condition: the claimant must have paid or been credited with Class 1 or Class 2 NI contributions on earnings of at least 50 times the LEL in one of the last two complete tax years before the start of the relevant benefit year. Nb. the benefit year starts in January; the tax year starts in April. Note that claimants can get NI credits to help to qualify for certain contribution-based benefits and the state pension. This includes credits for limited capability for work, for unemployment and for caring. Credits are awarded in various circumstances, including when the claimant either actually receives a relevant benefit (eg ESA, JSA) or meets the underlying conditions for that benefit. A claimant that passes the contributions test receives a flat-rate benefit payment for herself only. It does not have additions for a partner, or premiums or help towards housing costs. To get these additional amounts the claimant would need to satisfy the means test to qualify for income-related ESA (see below). This can be paid on top of contributory ESA. The amount of contributory ESA payable is reduced if the claimant has an occupational or personal pension of more than 85 a week. There are some exceptions to this rule. November

14 Contributory ESA: the 365 day time limit A time limit of 365 days applies to any contributory ESA the claimant receives if she is in the WRAG. The 13-week assessment phase counts towards this period. The time limit does not apply to people in the support group. For claimants whose contributory ESA is stopped at the end of the 365 day period they have the following options: 1. Claim income-related ESA. Jobcentre Plus should explain to the claimant how she can be assessed for this when it informs her that the award of contributory ESA is ending. She may have to complete form ESA3. 2. If she cannot get income-related ESA, the claimant can retain underlying entitlement to ESA in order to continue getting national insurance credits. These count towards other benefits including the state pension. 3. If she cannot get income-related ESA, the claimant may be able to claim contributory ESA again in the future if her condition deteriorates as long as the DWP considers that she has continuously had a limited capability for work since her contributory ESA stopped. To satisfy this, once contributory ESA ceases she should ask the DWP to continue to assess her as having limited capability for work. Then if her condition does get worse, she can make a new claim for ESA. 4. If she cannot get income-related ESA the claimant may be able to qualify for another 365 days of contributory ESA if she begins a new period of limited capability for work (which must be separated from the earlier period by more than 12 weeks) and her new claim is based on national insurance contributions she made in different, later tax years than those on which the previous award was based. Remember that in the above scenarios the claimant will have to continue to show, or when required show, that she has limited capability for work; and she will be required to complete a limited capability for work questionnaire and participate in the work capability assessment where necessary. November

15 Income-related ESA: the means test Income-related ESA is a means-tested benefit. It can be paid on its own or as a top-up to contributory ESA for those who are entitled to this. Unlike contributory ESA it is not time limited. The assessment involves a calculation comparing the claimant s needs (known as the applicable amount) with her income and capital (eg savings). A partner who the claimant lives with is included in the calculation of their needs as a couple, and his/her income and capital will be counted. Income-related ESA can include amounts to help towards mortgage interest payments and some other housing costs. Claimants who are responsible for children or qualifying young people should claim child tax credit as ESA does not include any amounts for them. A claimant cannot get income-related ESA if her (and a partner s) capital is worth over 16,000. Capital of 6,000 or less is ignored. For every 250 (or part thereof) that the claimant owns between 6,001 and 16,000 she is treated as having an extra pound of tariff income. For example: Claimant s/partner s capital = 7,200 minus 6,000 disregarded capital; Remaining capital 1,200 = 250 x 5 = 5 tariff income per week. November

16 ESA Amounts During the assessment phase all claimants are paid ESA of at least the basic allowance. This always applies to claimants of contributory ESA. Claimants aged under 25 are paid the basic allowance at a lower rate than older claimants during the assessment phase only. Claimants of income-related ESA may get premiums and help with housing costs from the start of a claim. After the assessment phase, the claimant becomes a main phase claimant and receives one of two additional components on top of the basic allowance, depending on whether she is placed in either the support group or the WRAG. Support group claimants get the support component of per week. Claimants placed in the work-related activity group receive the work-related activity component of If a decision on the claimant s work capability assessment is made after the normal 13- week assessment phase, the additional component can be back-dated to the fourteenth week of the claim ie start of the main phase. Contributory ESA Amounts Assessment phase (13 weeks) Main phase (after 13 weeks) Age under a week WRAG a week Age 25 or over a week Support group a week Income-related ESA Amounts (not including premiums, housing costs) Assessment phase (13 weeks) Single under 25 or lone parent under 18 Single 25 or over Couple both aged 18 or over a week a week Main phase (after 13 weeks) Single claimant or lone parent in WRAG Single claimant or lone parent in Support Group a week a week a week Couple in WRAG a week Couple in Support Group a week November

17 A claimant of contributory ESA can get an allowance only for herself. The calculation for income-related ESA, can include an allowance for the claimant and partner (if she has one) plus any premiums that may apply, depending on her circumstances. These are the pensioner, severe disability, carer and enhanced disability premiums. An amount may also be included in certain circumstances to help with certain housing costs, including mortgage interest payments. Benefit cap Since April 2013 there has been a benefit cap that places an overall limit on the total weekly benefits that certain claimants of working age can claim for themselves, and their families where applicable. ESA is included in the list of benefits to which the benefit cap applies. However there are exemptions which mean that the cap does not apply to certain claimants. This includes ESA claimants who are in the support group. Claimants in the WRAG are not exempt, unless they can be exempted under another route. November

18 Working While Claiming ESA Although ESA is a benefit for people who have limited capability for work, claimants are allowed to do certain types of work, in certain circumstances and continue to get ESA. Permitted work Permitted work is the option that can allow an ESA claimant to do paid work, whether in employment or self-employment. There are four types of permitted work. 1. Permitted Work Lower Limit: the claimant can earn up to 20 a week for an unlimited period for any number of hours 2. Permitted Work Higher Limit: the claimant can earn up to 104 a week after tax and national insurance deductions if the work is for less than 16 hours a week. She can work for: - a 52 week period. NB after the claimant has done 52 weeks work there must be a gap of at least 52 weeks before she can earn the Higher Limit again, after which another 52 weeks work is permitted OR - an unlimited period if she has limited capability for work-related activity ie is in the support group. 3. Supported Permitted Work: work where the claimant is supervised by someone employed by a public or local authority, a community interest organisation or voluntary organisation which provides or finds work for people with disabilities. Guidance suggests that this is work done by people who have a long-term disability that has had "a significant impact on their ability to learn or sustain a traditional job which will always, or for a number of years, prevent them from working more than a few hours each week". 4. Work done as part of a treatment programme under medical supervision while the claimant is an in-patient or regularly attending as an out-patient of a hospital or similar institution. Claimants carrying out the type of permitted work at 3. and 4. can earn up to 104 per week. There is no limit on the number of hours that they can work, or on the period for which they can do this type of work. Even though there is no limit on the numbers of hours a claimant can work for some types of permitted work, in reality if she is being paid at least the minimum wage then her earnings will limit how many hours she can work due to the rules on earnings from permitted work. November

19 For a claimant of income-related ESA, all of her earnings from permitted work up to the 20 or 104 limit are disregarded as income. For claimants on contributory ESA their earnings from permitted work up to these limits are disregarded as income for housing benefit claims, where applicable. A claimant should tell Jobcentre Plus if she is working and she will be sent a permitted work form PW1 to inform them of the nature of the work, the hours and the earnings. But she does not need the permission of a doctor to do permitted work. Other allowed work ESA claimants are also allowed to do certain other kinds of work. These include work done as a local councillor; an approved work trial arranged with the employer by the DWP (or an organisation providing services to the DWP) for which the claimant is not paid; and self-employed work done while the claimant is 'test trading' for up to 26 weeks with help from a self-employment provider arranged by Jobcentre Plus. Voluntary Work An ESA claimant is allowed to do voluntary work for anyone other than a relative. She must not be paid for the work, other than expenses reasonably incurred in connection with the voluntary work, such as travel, meals, child-minding, the costs of caring for a dependant and use of a telephone. There is no limit on the number of hours she can do as a volunteer. November

20 Making A Claim For various benefits, including ESA, it is expected that the client will make a claim over the telephone. The Jobcentre Plus claim-line: Telephone: / Textphone: Open 8:00am to 6:00pm, Monday to Friday. Charges may apply to calls from mobile phones, but the claim-line will call the claimant back if requested. Claimants can download and print-off form ESA1 at: gov.uk/employment-support-allowance/how-to-claim They may also be able to get the form from their local Jobcentre Plus office. When making a claim as well as basic personal information (including of a partner, if applicable) claimants have to provide various other information. This includes GP contact details, details of any earnings, other income or capital, recent employment, other benefit entitlements and details of rent agreement or mortgage. Remember that the client must provide medical certificates from her doctor, known as fit notes, (or other appropriate medical evidence) from after the first seven days of a period of limited capability for work (the first seven days are self-certified ). The evidence must continue to be supplied until after she has completed her medical assessment and been told that she has passed the limited capability for work test. Jobcentre Plus should send a reminder to the claimant shortly before any existing medical certificates are about to expire. But she should keep a copy of certificates and note the date that a replacement certificate will be required. Date of Claim and Backdating The date of the claimant s claim is usually the date of her telephone call to the claim line, or the date the claim form is received at a Jobcentre Plus office. However a claim for ESA can be backdated by up to three months before the day the claim is made. The claimant will need to tell Jobcentre Plus that they wish to claim from an earlier date; and she will need to supply medical evidence that she was not fit for work during the period of backdating. The claimant does not have to give any reasons for why she did not make a claim earlier. Note that an ESA claimant is not entitled to be paid the benefit for the first seven days of her claim, known as waiting days. A claimant does not have to serve the waiting days in certain circumstances eg. where the claim is linked to an earlier ESA award. November

21 Challenging Decisions If the claimant fails the work capability assessment, and is given a decision that she does not have limited capability for work, she should consider challenging the decision. If she decides not to challenge the ESA decision, but still wants to claim a benefit, she will have to consider claiming an alternative benefit such as JSA instead. If she is not happy with some other part of the decision, such as being placed in the WRAG instead of the support group or the imposition of a sanction, she can also challenge that decision. If the claimant has been awarded ESA then depending on what decision, or part of the decision, she is asking to be changed she should be made aware that there is a risk that the new outcome could be less favourable to her than the original decision. Mandatory Reconsideration If the claimant disagrees with a decision she must first ask Jobcentre Plus to reconsider it. This is called a mandatory reconsideration. She can do this in writing or over the telephone, but claimants should confirm any telephone request in writing and keep a copy of the letter. She must normally ask for the reconsideration within one calendar month of the original decision. This time limit can be extended up to a further 12 months if the following strict conditions are met: The DM thinks it is reasonable to grant the application and that it has merit; and There are special circumstances for the delay the claimant must show that it was not practicable for her to apply in time. Any special circumstances may count, but the longer the delay, the more compelling the circumstances must be. If the initial decision was that the claimant does not have limited capability for work, and so ESA is not awarded, she will not be paid ESA while the decision is being reconsidered. She will have to decide whether or not to claim JSA in the meantime (unless there is another earnings replacement benefit that she is entitled to claim). If the claimant does claim and get JSA during the reconsideration period this should have no influence on the ESA reconsideration decision-making process about whether or not she has limited capability for work. There is no time limit on how long the ESA mandatory reconsideration process takes. The Government did say that it expected that straightforward reconsiderations would take 14 days, but experience has shown that they are generally taking considerably longer. If Jobcentre Plus gets, or asks for, further information on the claimant s case the process is likely to take longer. November

22 Appeals Only once the decision has been reconsidered and the claimant has been given the reconsideration decision can the claimant submit an appeal application, if she is still unhappy with the decision. The application must be made in writing, ideally on appeal form SSCS1 direct to Her Majesty s Courts & Tribunals Service (HMCTS), not to the Jobcentre Plus office that made the mandatory reconsideration decision. Form SSCS1 is available from HMCTS and at: justice.gov.uk/tribunals/sscs/appeals Where the claimant s appeal is about a decision involving her limited capability for work she can be paid ESA at the basic rate until a final decision has been made on her appeal. If the claimant did not claim JSA or another benefit during the mandatory reconsideration period, and then submits an appeal, Jobcentre Plus may put her ESA back into payment. They will do this once they have received both confirmation of her appeal application from HMCTS and medical evidence from the start of the appeal period. If the claimant did claim JSA during the mandatory reconsideration process and subsequently makes an appeal, she should ask Jobcentre Plus to close the JSA claim and put her back onto ESA. A new claim for ESA won t be required but medical evidence such as fit notes will be required throughout the appeal period. In either case, the claimant can also get her ESA backdated for the reconsideration period if she can supply backdated fit notes/other appropriate medical evidence to cover that period. But the availability and/or amount of backdated ESA will depend on what, if any, other benefits she claimed during that period. Claimants already getting Incapacity Benefit or Income Support ESA replaced both Incapacity Benefit and Income Support paid on the grounds of incapacity for new claims from October Most claimants of these benefits have migrated to ESA. Any claimants who are still receiving an old incapacity for work benefit will eventually be reassessed under the work capability assessment. Claimants who are assessed as having limited capability for work will be migrated onto ESA. These claimants move straight onto main phase ESA: they do not have go through an assessment phase. Those found not to have limited capability for work will have to consider challenging the decision or claiming an alternative benefit such as JSA. Claimants of Incapacity Benefit are moved onto contributory ESA, as the former is based on national insurance contributions. Those who are placed in the work-related activity group will have their ESA limited to 12 months from the point of conversion. November

23 Universal Credit Universal Credit is a new means-tested benefit, which will eventually replace the following benefits for claimants of working age: Income-related ESA; Income-based Jobseeker s Allowance; Income Support; Child Tax Credit; Working Tax Credit Housing Benefit; Parts of The Social Fund. Universal Credit is being introduced initially in selected areas, and for certain new claimants (single people and couples without children). Claimants who get income-related ESA will eventually be moved onto Universal Credit. Contributory ESA will still be available to qualifying claimants, but they may also get some Universal Credit in addition. Claimants will still be assessed under the work capability assessment, and will have to meet either some or no work-related requirements. This reflects the duties of claimants in the WRAG and in the support group. Further Information DWP s A Guide To Employment and Support Allowance The Work Capability Assessment (ESA214) available at November