Transitional Arrangements: Employment and Support Allowance
28 April 2008

The Employment and Support Allowance (Transitional Provisions) Regulations 2008 (SI 2008/795)

The ESA (Transitional Provisions) Regulations [note 1] set out the rules for how claims for Income Support (IS) on certain grounds, and claims for Incapacity Benefit (IB), will be treated after the introduction of Employment Support Allowance (“ESA”).

People who are currently receiving IS or IB because they are sick will not automatically have to claim ESA when the new benefit is introduced, and if their IS or IB continues they will not be able to choose to claim ESA [reg 3(1)]. The new benefit will be for those who make claims after 27/10/2008.

Claims for IB or IS treated as claims for ESA after 27/10/2008:

From 27/10/2008 all new claims for the benefits in the following list will be treated as claims for ESA [See Reg 2 Transitional Provisions Regulations]:

• Incapacity benefit;
• Severe disablement allowance(SDA); or
• Income support on the basis of ‘disability’, ie under one of the following routes*:
  
  
  • Incapacity for work;
    
  • Disabled student;
    
  • Deaf student; or
    
  • Blind person
    

* these four different routes to entitlement to income support are now called “income support on the grounds of disability” [See Reg 1(4) of the Transitional Provisions Regulations]

The practical effect of this is that no one will be able to claim IB, SDA or IS on the grounds of disability after 27/10/2008 unless they come within one of the exceptions below.

Who can still make a new claim for IB or IS on the grounds of incapacity for work after 27/10/2008:

There are four exceptions to this rule:

• If someone is already entitled to IB or SDA they can make a claim for IS on grounds of disability after 27/10/2008. Similarly, a person entitled to IS can claim IB.

• Someone who was getting one of the benefits listed above before 27/10/2008 and then has a break in their entitlement. Such a person will not have to claim ESA (and can instead reclaim whichever of the benefits listed above that they used to receive) but only if:
  
  
  • their claim is for IB or SDA and can be linked with a previous period of incapacity and treated as one period with that under the linking rules (see CPAG’s Welfare Benefits and Tax Credits Handbook 2008/09, pp 264-265).
  • they claim as a “welfare to work beneficiary” (see CPAG’s Handbook 2008/09, p 666).
  • they claim IS on the grounds of disability but they had previously been entitled to income support on the grounds of disability for at least 4 or more days in a row and they reclaim within 8 weeks of this entitlement stopping.
  If someone could claim one of these benefits under this rule but has in fact claimed ESA, then their claim will be treated as a claim for the benefit they could have claimed – so such people will not be able to claim ESA [See Reg 3(2) Transitional Regulations].
  
  
• If someone makes a claim for ESA on or after 27/10/2008 but for a period that includes days before 27/10/2008, and it appears to the Decision Maker that the person would have had an entitlement in that period to either IB or IS on grounds of disability, then this claim may be treated as a claim for one of those benefits as an alternative to a claim for ESA. [See Reg 4 Transitional Provisions Regulations]
  
  
• If someone makes a claim for IB, IS on the grounds of disability or SDA after 27/10/2008 but for a period that starts before that date. This means that a claim for IS or IB can be made after 27/10/2008 and -provided it can be backdated to a date before then – it will not be treated as a claim for ESA.

Claims for ESA made before 27/10/2008:

If someone purports to make a claim for ESA after 27/07/2008 [See Reg 1(2) Transitional Provisions Regulations] but before 27/10/2008, and it appears to the Decision Maker that the person would be entitled to IB or IS on grounds of disability, then the ESA claim may be treated as a claim for that benefit instead.

The roll out of the new “Work Capability Assessment”:

The above discussion describes who will have to claim ESA after 27/10/2007. A separate issue is that the new “Work Capability Assessment” will replace the existing test of capacity for work for existing claimants. The Government has announced that the new test will apply to all people aged under 25 claiming IS on grounds of incapacity, IB or SDA from some time in 2009 and to all claimants of these benefits from 2010. However, the details of exactly when and how the new tests will apply to existing claimants have not yet been announced.

See examples of relevant DWP forms.

Notes
1. Note that these rules have been amended by:

• Reg 42 of the Employment and Support Allowance (Miscellaneous Amenments) Regulations 2008 (SI 2008 No. 2428); and
• Employment and Support Allowance (Transitional Provisions) (Amendment) Regulations 2008 (SI 2008 No. 2783)

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