Employment and Support Allowance Q&A

Advisers' questions on ESA, answered by CPAG. If you are an adviser with an ESA query that you would like included in this online Q&A, please submit it to esa@cpag.org.uk. Your query may be selected for publication here with CPAG's response. (Sorry but we can't respond to queries individually - see http://www.cpag.org.uk/welfarerights/ for details of our telephone advice line for advisers.)

Q: Is it true that there is no disability premium payable in ESA?

A: Yes. Although income-related ESA does have applicable amounts including personal allowance and premiums as part of the calculation, there is no disability premium, even where the claimant has been sick for 52 weeks or more, gets DLA, etc. There is no direct replacement for the premium, but we understand that the policy intention is that the absence of the premium is compensated for by the additional component payable after the initial 13 week assessment phase, ie either the work-related activity component (£24 a week) or the support component (£29 a week).

Q: What will happen to the disability premium in income support and income-based JSA?

A: The disability premium will continue to exist in those benefits, including, for income support, on grounds of incapacity for work. Those already getting it can continue to get it (ie, in income support and income-based JSA) after ESA is introduced on 27 October. If income support or income-based JSA is claimed after 27 October, but backdated to 26 October of before (ie, so they are not on ESA), the disability premium can still be included with it, including, in income support backdated or linked to before 27 October, on grounds of incapacity for work. If a claimant is on income support or income-based JSA before 27 October but qualifies for the disability premium after 27 October, it can still be included. But any claimant who has ‘limited capability for work’, ie is within the ESA regime rather than income support or income-based JSA cannot get a disability premium on any ground.

Q: What about the disability premium in housing benefit and council tax benefit for people on ESA?

A:Again, because there is no disability premium for anyone in the ESA regime, a claimant of ESA (or more specifically, a claimant who has ‘limited capability for work’) will not have a disability premium included in their housing benefit or council tax benefit, even if (for example) they are entitled to DLA or are registered blind. Instead, they will have an extra amount included in their applicable amount, equal to the value of the additional ESA component that they are entitled to on completion of the assessment phase, ie either £24 (recipients of the work-related activity component) or £29 (recipients of the support component). But the extra amount will not be added to the applicable amount allowance until the additional ESA component is awarded. Couples have a choice about who is the housing benefit/council tax benefit claimant, and a member of the couple who claims and who is not within the ESA regime can still qualify for the premium – but in such cases they cannot also get the extra amount added for the ESA component, even if their partner gets such a component.

Q: Where can I find the rules on backdating of claims for ESA?

A: They are in The Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations, SI 2008 No.1554. Specifically, those regulations amend Schedule 4 of the Social Security (Claims and Payments) Regulations 1987 so as to provide a 3 month time limit for making a claim, ie so that it can be backdated for up to 3 months.

Q: Will claims for incapacity benefit and income support for incapacity for work still be possible after ESA is introduced on 27 October?

A: No, except where the claim can be backdated to before 27 October, or where it can be linked (under the usual linking rules) to an earlier award of incapacity benefit or income support from before that date. With backdating, the claim would need to be backdated to 26 October or before. Both incapacity benefit and income support can be backdated for up to three months, although because rules for those benefits are different it will in practice usually be more straightforward to backdate a claim for incapacity benefit.

Q: Are the national insurance and means-testing rules for ESA similar to those for incapacity benefit and income support?

A: Yes, although there are one or two differences with the income support rules on income, in particular for ESA earnings from ‘permitted work’ that are within the relevant earnings limits are ignored as income. Contributory ESA has very similar contribution conditions to incapacity benefit, and also has non-contributory form for certain young claimants, similar to incapacity benefit in youth.

Q: Is it true that the more severely disabled people will be entitled to a higher rate of ESA?

A: Generally, yes. In particular, after the initial 13 week assessment phase of ESA, those assessed as so disabled that they have ‘limited capability for work-related activity’ will be entitled to an extra ‘support component’ of £29 a week, whereas other claimants will get a ‘work-related activity component’ of £24 a week. Also, the enhanced disability and severe disability premiums are payable as part of income-related ESA. But only a relatively small proportion of claimants will qualify for the support component.

Q. Will people be able to get income-related ESA as a student on the same basis that disabled students can currently get income support?

A. No. For income-related ESA, you must not be in ‘education’ (which is defined in a similar way as the equivalent income support rule) and the only exception is where you are entitled to disability living allowance (it does not matter which component or at what rate it is paid). There is no other route for disabled students in ‘education’ to be entitled.

Q. Is there a right to reside and habitual residence test for ESA?

A. Yes, but only for income-related ESA. Otherwise there are rules on being in Great Britain for ESA in general and, for ESA in youth, more specific residence and presence rules and on not being a person subject to immigration control.

Q: Is there a new test of incapacity for work for ESA?

A: Yes, although the new test (commonly referred to as the Work Capability Assessment) is in fact a test of, ‘limited capability for work’. It is broadly similar to the Personal Capability Assessment that applies to incapacity benefits, although there are fewer exemptions, the descriptors have been extensively revised, and the points scoring system in the physical health and mental health tests are aligned in the Work Capability Assessment. The new test only applies to claimants of ESA at first (and not to current claimants of incapacity benefit or income support) although the Government have said that they plan to extend it to current incapacity claimants aged under 25 from 2009 and to other current claimants from 2010.

Q: Will people with severe mental illness be exempt from the new test? And what about people in the support group?

A: Neither those with severe mental illness or those in the support group are exempt. The new test has far fewer exemptions than the personal capability assessment, and the list does not include severe mental illness, or support group membership. Nor does it include entitlement to the high rate of the care component of disability living allowance. In theory at least, claimants in all these categories might be required to undertake the test, ie complete and questionnaire and attend a medical. In practice, many will probably be passed through the test on the basis of pre-existing evidence; but that is not the same as exemption.

Q: I have heard that the Work Capability Assessment will also involve tests of ‘limited capability for work-related activity’ and a ‘work-focused health-related assessment’. Are they anything to do with the test of being too ill to work?

A. No. The test of whether a claimant is too ill to work is one of whether they have ‘limited capability for work’. The other tests you ask about are separate from that test, although all the tests will be applied at the same appointment and by the same examining doctor (or other approved health professional). The test of ‘limited capability for work-related activity’ is a test of whether the claimant is a member of the ‘support group’ for ESA, and so entitled to the support component and exempt from the requirement to attend work-focused interviews. The ‘work-focused health-related assessment’ is a report drawn up for use by the claimant and their personal adviser at work-focused interviews, to provide a medical perspective on training, rehabilitation, needs in the workplace, etc – it is similar to the ‘capability reports’ currently produced for incapacity benefits claimants.

Q. Will the ‘permitted work rules apply to ESA?

A: Yes. The ESA rules have their own version of the permitted work rules but they are fundamentally similar to those that apply to incapacity benefits. One important difference is that for ESA earnings from permitted work that are under the relevant earnings limit are ignored as income.

Q. Will people be able to appeal if they are found fit for work? And will they be able to get ESA whilst appealing?

A. Yes. When a finding that someone does not have ‘limited capability for work’ is incorporated into a decision about their entitlement to ESA or to national insurance credits, they will be able to appeal about that. The appeal tribunals will be the same as those that consider incapacity for work appeals. Whilst the appeal is pending, they will be able to get reduced rate ESA. This will be paid at the rate that applies during the assessment phase of ESA – ie it will not include any additional support component or work-related activity component. Strictly speaking a new claim for ESA needs to be made, but the DWP can treat the appeal letter as a new claim.

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