Ask CPAG Online - Can you get paid ESA waiting for a decision?

Can you get paid ESA while waiting for a decision? 

What happens when you claim ESA for the first time?

If you are claiming ESA for the first time, you are entitled to be paid ESA at the basic (‘assessment phase’) rate (i.e. without a work-related activity or support component) until you are assessed and receive a decision as to whether you have LCW.1

What happens if you are reclaiming ESA?

Note that if you live in a UC full service area, youo cannot reclaim IRESA because this benefit is abolished for you (see UC Natural Migration).

If you reclaim ESA (CESA or CESA / IRESA in a UC 'gateway area') following a previous decision that you did not have LCW, you are only entitled to ESA pending a new LCW decision if your health condition has significantly deteriorated or you have new health condition (see What if your health condition has changed? section below)2

If you reclaim ESA within 6 months of being treated as not having LCW on a previous claim because you failed to return an ESA50 form or failed to attend a medical examination, you are only entitled to ESA pending a new LCW decision if your health condition has deteriorated or you have a new health condition (see What if your health condition has changed? section below). If you reclaim after 6 months in these circumstances, you are entitled to ESA pending a new LCW decision.

If you reclaim ESA after being refused it for any reason other than not having LCW, you are entitled to be paid until you receive your LCW decision.

Note that the new rules only prevent you from getting paid pending a decision. They do not stop you from making a claim and being assessed for LCW in the normal way.

What if your health condition has changed?

The restrictions on getting paid if you reclaim ESA following a decision that you do not have LCW do not apply, if you are suffering from a new or significantly worsened disease or bodily or mental disablement since the original decision was made. If this applies, you are entitled to get paid when you reclaim ESA, pending a new decision on whether you have LCW.

There is no legal definition of what constitutes a new or ‘significantly worsened’ condition, but case law and DWP guidance suggests that your condition has only ‘significantly worsened’ if you are now likely to satisfy the WCA by scoring 15 points. You can read more about this here.

In practice, the best way of showing that you are suffering from a new or significantly worsened condition is to submit medical evidence from your doctor. You could do this when you make your claim or when the DWP tell you that you cannot get paid pending a decision. The DWP may also seek additional evidence from your doctor and send you a form ESA83 to complete asking for details of how your medical condition has changed since your previous work capability assessment. 

If the DWP refuses to accept that you are suffering with a new or significantly worsened condition, you can make further representations and submit further evidence. You can only ask for a mandatory reconsideration and then an appeal once you receive a formal decision that you are not entitled to ESA because you do not have LCW. If the evidence is unclear, you are likely to be required to submit a new ESA50 questionnaire and attend a medical examination, pending which you will not be paid ESA.

When will you be paid ESA?

If you are entitled to ESA pending a LCW decision, you will normally be paid fortnightly in arrears. If there is a delay in dealing with your claim or paying you, you may be able to get a short-term benefit advance. 

You are not entitled to ESA for a period of seven ‘waiting days’ at the start of a new claim unless any of the exceptions set out in Chapter 28(4) of the CPAG Handbook apply (e.g. you are terminally ill, or your claim is within 12 weeks of a previous ESA claim ESA). 

If you cannot wait, you may be able to request a short-term benefit advance to cover your entitlement from the end of the waiting period (it will not cover the waiting period itself). This is recovered from your ongoing entitlement to ESA, giving you reduced payments over a longer period. 

If you are not entitled to ESA pending a LCW decision, you will not be paid until you have been assessed as having LCW, but will receive full arrears back to the date of your claim (a work related or support component is payable from the end of the13th week of your claim).

What can you do if you are not paid pending a decision?

The first thing to do is consider whether you can be paid on the basis that your medical condition has changed. If this does not apply, you could consider claiming another benefit, particularly JSA, see below for more details.

Otherwise, your only other options are to survive without benefit until you receive a LCW decision, or to claim local welfare assistance if you have insufficient resources to live on.

Could you claim another benefit instead of ESA?

You may be able to claim income support (e.g. if you are a carer or lone parent) or pension credit (if you are over pension credit age but below pensionable age), instead of ESA, or a partner may be able to claim these benefits for you both. You will need to decide whether you would be better off financially and in terms of the work-related conditionality you need to satisfy. 

The main choice you are likely to face is whether to claim JSA instead of ESA. Note, however, that if you live in a UC 'full service are' or a 'gatetway area' and satisfy the 'gateway conditions, you cannot make a new claim income-based JSA (see Chapter 2 of the CPAG Handbook)

Should you claim JSA instead of ESA?

If you are not entitled to ESA payments pending assessment and may not satisfy the work capability assessment, you may be better off claiming JSA instead of ESA. 

It may be possible to claim JSA while you are waiting for a LCW decision on your ESA claim (see paragraphs 18 and 19 of the Decision Maker’s Guide Memo DMG 9/15). There may be practical problems, however, in claiming two benefits at the same time (one of the conditions of entitlement to ESA is that you are not entitled to JSA) and proceeding through the assessment phase of ESA while you are getting JSA. You are, therefore, likely to have to relinquish your claim for ESA before you can claim JSA. 

If you live in an area accepting universal credit (UC) claims and you satisfy ‘gateway conditions’ (which currently include not having claimed ESA or being unfit for work), you will be required to claim UC instead of income-based JSA. 

It is important to understand that you cannot claim JSA if you state that you are too sick to work. This can result in a ‘revolving door’ scenario of being told you cannot claim JSA because you are unfit to work and cannot claim ESA because you do not have LCW. 

You must satisfy the JSA jobseeking conditions of being available for work and actively seeking work, within agreed limitations relating to your physical or mental condition. You will be required to agree to a ‘claimant commitment’ at an interview with a ‘job coach’, which sets out details of the activities you are required to undertake. 

If your claim is refused because of the jobseeking conditions, or you are threatened with a sanction, see Sanctions.

If you become too sick to work while on JSA, you can remain entitled to JSA without having to satisfy the jobseeking conditions for up to 13 weeks in any one period of 12 months. In these circumstances, you may be better off staying on JSA rather than claiming ESA, particularly if you are not entitled to ESA payments pending a work capability assessment. You will need to provide a fit note from your doctor. The rules are set out in Chapter 32(1) of the CPAG Handbook. Note that you must not be expected to be unable to work for more than 13 weeks, but if you are still too sick to work after 13 weeks, you can then claim ESA and time spent on JSA when you were too sick for work counts towards the 13 week ESA ‘assessment period’.