IS and incapacity for work

Issue 212 (October 2009)

Martin Williams looks at DMG Memo 30/09 and the possibility of retaining IS on the basis of incapacity post employment and support allowance (ESA).


In Bulletin 210, we highlighted a problem with the guidance in DMG Memo 12/09 relating to claimants who became incapable of work while getting income support (IS) on some other basis (e.g. via the receipt of statutory sick pay (SSP) or as a lone parent - see Bulletin 206). We suggested that it was possible to retain entitlement to IS on the basis of incapacity, when there was no further entitlement on the previous basis (e.g. because SSP had run out or the claimant was no longer a 'lone parent') and CPAG assisted several organisations with appeals on this issue.

The DWP has now issued new guidance (DMG Memo 30/09) which accepts that such claimants can remain on IS and revokes the previous guidance in paragraphs 2 and 3 of Memo 12/09.

The transitional arrangements for ESA

When a new social security benefit is introduced, there is often some transitional protection for existing claimants who would be worse off under the new rules. This normally takes the form of a 'savings' provision, which protects existing claimants from the effect of the revocation of the old rules by 'saving' the old rules and treating the new rules as if they had not been introduced for a period of time.

This approach, however, was not adopted on the introduction of ESA. All of the existing rules relating to IS, including entitlement on the basis of incapacity for work and the rules about determining whether a person was incapable of work, were left in place. Instead, transitional regulations1were introduced which sought to prevent anyone from claiming IS 'on the grounds of disability', or incapacity benefit (IB) except in limited circumstances,2by treating such a claim as a claim for ESA. This meant that except in the limited circumstances provided for in the transitional rules, no new claims for IS on the grounds of disability or for IB could be made.

Claims and awards

The rules do not, however, prevent someone who has an existing award of IS on some basis other than incapacity, from continuing to get IS on the basis of their incapacity, because they can do so without needing to make a new claim, thus precluding such a claim being treated as a claim for ESA under the transitional regulations.

Once a person has claimed and been awarded a benefit, the claim no longer subsists. Instead, there is an 'award' of benefit, which continues until it is terminated by revision or supersession.3Most significantly for the issue here, there is no requirement for a person to make a new claim for IS when they move from one eligible group to another (e.g. lone parent to carer, or person incapable of work). Their award simply continues on a different basis. The change will not even require a supersession of the award, unless a different amount is payable. These principles have been established in case law.

In R(IS)10/05, the claimant was found to have been working while claiming IS on the basis of incapacity for work. His IS was superseded and retrospectively terminated. In his appeal against the consequent overpayment recovery decision, the Deputy Commissioner decided that the claimant may have had a continued entitlement to IS on the basis that he was a disabled worker. Significantly, he held that a decision-maker had to satisfy himself that a claimant was no longer within any of the groups of people eligible for IS, before the award could be terminated. Paragraphs 8-10 of DMG Memo 30/09 reminds decision-makers of this.

In CIS/3781/2002, the claimant had ceased to qualify for IS on the basis that she was a carer. In her appeal the claimant had said she should have remained entitled because she was incapable of work. The tribunal dismissed her appeal because she had not applied for IS or incapacity benefit on the basis of incapacity. The Commissioner held that this was not a requirement and that once the claimant had raised the question of her incapacity in her appeal, the tribunal should have adjourned for the case to be heard by a tribunal including a medical member, so that the question of whether the claimant was incapable of work under the personal capability assessment could be considered.

Implications for claimants

An existing IS claimant can continue to get IS on the basis of incapacity for work if they are no longer entitled on some other ground, as long as there is no break in their award (i.e. they became incapable of work before their entitlement on some other basis ceased). This applies even where they have not previously informed the DWP about their incapacity. Once a claimant is getting IS on the basis of incapacity they have an 'existing award' for the purposes of the ESA transitional rules and can therefore get incapacity benefit as well,4provided they meet the contribution conditions or the incapacity in youth rules.

Establishing incapacity for work

A claimant getting IS on some other basis can establish incapacity for work by submitting a medical certificate (Med 3 or 5). The DWP must treat such a person as incapable of work pending assessment under the personal capability assessment.

IS can continue in payment, as long as the certificate is submitted before (or on the day after) the person is no longer entitled to IS on another ground - i.e. before s/he ceases to be a lone parent, carer, person in receipt of statutory sick pay etc.5

Where a claimant has not provided a medical certificate in time, or cannot provide one, IS will normally cease. If the claimant subsequently produces a backdated certificate which covers the period prior to the termination of IS, the award could be reinstated on revision. If the claimant has indicated that s/he is incapable of work but has been unable to provide medical evidence, the Memo advises decision-makers to suspend IS entitlement pending the immediate application of the PCA.6Where a claimant has not provided a medical certificate in time and appealed against a decision that s/he is no longer entitled to IS, a tribunal is unlikely to be able to take account of a medical certificate subsequently produced, unless it relates to the period prior to the termination of IS.7

Better-off issues

The question of whether a claimant is better off getting IS on the ground of incapacity or claiming ESA is not simple. Note also that once a claimant has received IS on the basis of incapacity for at least 4 days, s/he would need to break the claim for at least 8 weeks before s/he can claim ESA.8It is therefore important to consider whether s/he would be better off on IS or ESA before the issue arises - i.e. before IS entitlement as a lone parent, carer etc. ceases.

Deciding whether or not a claimant will be better off on ESA will involve assessing whether s/he is likely to pass the much harsher test of 'limited capability for work' after the assessment period. Whether the claimant is likely to be in the 'support group' is also a relevant consideration, as the support component is more than the single person's rate of the disability premium and also gives access to the enhanced disability premium (the couple rate disability component is worth more than the support component but this may be offset if the claimant is also entitled to an enhanced disability premium).

It should also be noted that the support or work related activity component is paid from the start of the 14th week of entitlement to ESA, whereas a disability premium is only payable on the basis of incapacity after 364 days (but note that it may be possible to establish incapacity retrospectively via a backdated medical certificate 9and that the premium can be paid immediately where the claimant or partner gets disability living allowance). Finally another consideration is whether the claimant has earnings from permitted work (which are not yet disregarded in full for IS but are for ESA).

Where a claimant decides that s/he would prefer to get ESA, the Memo advises that s/he can withdraw their claim for IS (although note this must be done before IS has been paid on the basis of incapacity for more than 4 days) and claim ESA instead (paras 14-15). Claimants doing this should realise that unless they can qualify for IS on the basis of some other route again then they will not be able to switch back to getting IS (para 16).

Previous cases

Paragraph 20 of the Memo states that further guidance will be issued in relation to where awards of IS were wrongly terminated and claimants were advised to claim ESA. Any claimant who has lost out in these circumstances, however, could submit a late appeal against the decision to terminate IS.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. The Employment and Support Allowance (Transitional Provisions) Regulations 2008 (SI 2008 No 795) - as amended.
  • 2. See for a full description of these rules.
  • 3. s 8(2)(a) Social Security Act 1998
  • 4. Reg 2(2)(e) ESA (TP)(A) Regs 2008
  • 5. Reg 28 Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995 No. 311)
  • 6. Paras 11 and 12, DMG Memo 30/09
  • 7. s 12(8)(b) SSA 1998
  • 8. See Reg 2(2)(c) and 3(2) (ESA (TP)(A) Regs 2008
  • 9. Although note that CIS/2699/2001 may prevent this unless the claimant can argue successfully for an extension of time in their late notification of a change of circumstances.