Martin Williams looks at the rules for claiming ESA.
The rules on claiming ESA are now contained in the Social Security (Claims and Payments) Regulations 1987.1There are some teething problems with the new system; although ESA was launched on 27 October 2008, the computer system is not live across the country and the Decision Makers Guide has not yet been updated with the official guidance on how to apply the claiming rules.
A person must make a claim to be entitled to ESA.2The only exception is where a person has made and is pursuing an appeal against a decision that they do not have limited capability for work:3no new claim is needed in such a case and so ESA should be put back in payment when an appeal is made.
A claim for ESA can be made by a telephone call 4to 0800 055 6688 (8am to 6pm Monday to Friday) or textphone 0800 023 4888 unless the decision maker directs it must be made in writing. The claimant will not need to sign a copy of the information given in the call unless the decision maker has directed this in her/his particular case. If such a direction is made then the claim will not be valid unless the claimant approves the written statement of her/his circumstances DWP sends to her/him. The claim will be regarded as defective (see below) unless the claimant provides during the call all the information needed to determine the claim.5
A claimant can always choose to make a claim in writing.6As with all benefits, the DWP must supply a claimant with an ESA claim form free of charge when notified of an intention to claim.7A valid written claim must be made on the approved claim form in accordance with the form's instructions. It appears that a claim not made on the approved form, or a form which can be treated as an ESA claim, or not made as per the instructions, will be regarded as defective (see below).
If a claim is defective,8then the DWP must advise the claimant of the defect and the relevant rules as to the date of claim (see below). It appears that the DWP must advise the claimant of the precise defect and not merely that the claim is defective.
If the claimant corrects this defect (ie, by providing the required information) within one month,9or such longer period as is reasonable, of the date on which the DWP last drew attention to the defect then the claim is treated as if it had been properly made in the first instance.
Date of claim
The date on which a claim is made 10is important as, unless it can be backdated, a claimant cannot receive ESA for any period before the date on which the claim is made.
The rules setting the date on which a claim is made are as follows (other than for advance claims):
- The date on which a telephone claim is made is the date of the phone call in which the claimant provided all of the information that the decision maker needed to determine the claim (or the date on which they are treated as having done so under the rule about correcting defective claims).
- For a written claim, the date is the date on which a claim on the approved form made in accordance with the instructions on the form is received (or is treated as doing so if a corrected defective claim).
- In the case of a written claim, where the claimant complies with the above paragraph within one month, or longer if reasonable, of first having notified the DWP that s/he intended to make a claim then the date of claim is the date of this notification.
Offices to which claims are made/information provided
Claims in writing should be sent to an 'appropriate office' (which generally means an office of the DWP). However, claims can also be sent to the offices of a local authority administering housing benefit or council tax benefit 11where the DWP has made arrangements with them to receive ESA claims.
If a person does not satisfy the conditions of entitlement on the date of claim but it appears that, unless his/her circumstances change, s/he will meet the conditions from some date within the next three months then the claim can be treated as made on that future date.12
If someone is not entitled to income-related ESA at the date of claim only because their income is too high but would become entitled were a component added (ie, because the addition of the component to her/his applicable amount would mean her/his income was then less than this amount) then s/he can be awarded ESA from the start of the 14th week of when s/he would have been entitled had her/his income not initially been too high.13
All claims for ESA (contributory and income-related) can be backdated for three months from the date on which the claim is made.14No extra conditions for backdating need to be satisfied. The claimant must request the backdating.
Claiming the wrong benefit
A written claim must be made on the approved form except:
A maternity allowance claim form can be treated (either instead or in addition) as for ESA (and vice versa);15
Claims for income support on grounds of disability, incapacity benefit and severe disability allowance will be treated as claim forms for ESA unless the claimant would be entitled to the benefit for which the form is intended under the transitional rules (see Bulletin 206, p6).
Steve becomes sick in January 2009. On 3 May 2009 he calls the DWP office and says he would like to claim ESA. The local office says it will get back to him. He has not heard anything by 10 June so he sends a letter. On 29 June he receives an ESA claim form in the post. He fills this in and delivers it to the DWP on 30 June. On the form he asks for backdating to January 2009. However, he neglects to fill in some of the boxes about his savings. He has still heard nothing by 7 August, so he calls the DWP. He is informed that his claim form was not properly completed. On 20 September the DWP writes to him with copies of the claim form pages he had not completed correctly and ask him to complete these. Steve fills in these pages and sends them back. The DWP receives them on 19 October.
Steve should be awarded ESA from 3 February 2009, because:
- his claim form is received on 30 June but it is defective. However, Steve did remedy the defect within one month of the last date on which the DWP drew his attention to the defect (19 October is within one month of 20 September) and therefore his claim is treated as made on 30 June;
- he had notified the DWP of his intention to make a claim on 3 May 2009. The DWP should have sent him a claim form much sooner and so they should accept that it is reasonable to extend the time. So his date of claim should be 3 May 2009 as he is treated as having made a claim within such period as is reasonable of his notice of intention to make a claim;
- his claim can be backdated three months from 3 May to 3 February.
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. 'C&P Regs'- SI 1987/1968 as amended - the amendments for ESA are contained in the Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations 2008 (SI 1554/2008)
- 2. s.1 Social Security Administration Act 1992
- 3. Reg 3(j) C&P Regs
- 4. Reg 4G C&P Regs
- 5. In practice most claims will be defective as the medical certificate will need to be supplied.
- 6. Reg 4H C&P Regs
- 7. Reg 4(5) C&P Regs
- 8. Reg 4G(3) & (5) and 4H(4) & (7) C&P Regs]
- 9. In calculating the one month ignore any period between date claimant notified of failure to take part in a work focussed interview and date that decision changed on revision: Reg 4I(3) C&P Regs
- 10. Reg 6(1F) C&P Regs
- 11. Or to a contractor doing this for a local authority.
- 12. Reg 13 C&P Regs (note; this rule is not available to a person from abroad)
- 13. s5 WRA 2007; reg 146 ESA Regs
- 14. Sch 4 C&P Regs
- 15. Sch 1 C&P Regs