Ask CPAG Online - ESA Problem Areas Transfers from incapacity benefits to ESA
Transfers from incapacity benefits to ESA
Employment and support allowance (ESA) replaced incapacity benefit, severe disablement allowance and income support (where paid on the basis of ‘disability’) from October 2008 for new claimants.
Existing claimants of the previous benefits stay on them until they are transferred onto ESA. All the transfers were due to be completed by April 2014, but delays in arranging ESA assessments have meant that some may still be transferred. There may also still be issues arising from past transfers.
How are you transferred?
You initially receive a notice explaining that your existing benefit will stop after you have been reassessed for ESA. There have been issues about the adequacy and non-receipt of notices, but a 3-Judge panel Upper Tribunal decision (see JM v SSWP (ESA)  UKUT 234 (AAC)) held that the standard form of notices was lawful and that any breach on the basis of their inadequacy, and even failure to issue a notice, did not invalidate any subsequent conversion decision.
After being assessed for ESA, you will receive a ‘conversion decision’ telling you whether you have ‘limited capability for work’ and thereby qualify for ESA.
How is your ESA calculated?
The amount of ESA to which you are entitled is calculated in the normal way, but note the following points and variations.
You are entitled to the amount of ESA you would be entitled to if you made a new claim.1
Because a claim for ESA is legally a claim for both contributory ESA (C-ESA) and income-related ESA (IR-ESA), your entitlement to both elements of ESA should be considered.
In December 2017, the Secretary of State for Work and Pensions accepted that some 75,000 individuals may have been underpaid when transferred from IB to ESA due to the failure to consider whether they qualified for IR-ESA and not just C-ESA. The DWP's position was that it would only backdate IR-ESA to 21 October 2014, the date of a Upper Tribunal decision it claimed established that it was making the wrong decisions. However, following a legal challenge by CPAG, the DWP accepted, in July 2018, that the failure to consider IR-ESA was an official error and that, as a result, backdating is payable back to the date of the conversion to ESA. The DWP is in the process of contacting all the claimants affected. For more information, see the CPAG press release CPAG legal action leads to full arrears for disabled claimants.
This means you should be paid a ‘work-related activity component’ or ‘support component’ from the first day you are entitled to ESA, rather than from 13 weeks later (the normal length of the assessment period).2 The DWP sometimes wrongly say that you cannot qualify for a component for 13 weeks and you should challenge this by requesting a mandatory reconsideration, quoting the relevant regulation.
You are entitled to a ‘transitional addition’ if the amount of ESA to which you are entitled is less than the previous benefit. This means that you will receive a top-up, called a transitional addition, of income to ensure your new rate of benefit is not less than you were receiving previously. The rules for calculating transitional additions are set out in Chapters 9(4) and 17(5) of the CPAG Handbook.
The transfer process is explained in more detail in Chapter 30(4) of the CPAG Handbook.
What can you do if you are refused ESA?
You can challenge a ‘conversion decision’ (e.g. refusing you ESA because you do not have ‘limited capability for work’ or a support component because you do not have ‘limited capability for work-related activity) by requesting mandatory reconsideration and then, if necessary, by appealing (see Challenging decisions).
Note that you are not entitled to ESA pending a mandatory reconsideration, but are entitled to the assessment rate of ESA pending an appeal.
If you are suffering from a new health condition or your condition has significantly worsened since you received your conversion decision, you can reclaim ESA and get paid pending a new assessment (see ‘Can you get paid while waiting for a decision?).
If you not entitled to ESA on conversion, you can make a claim for jobseeker’s allowance, but must satisfy the jobseeking conditions. Alternatively, you can claim income support if you are in an eligible group (e.g. a lone parent of a child under 5 or a carer).