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ESA Problem Areas: Claims and Payments
What does this section cover?
This section covers some of the common problems that can happen when you claim ESA, including missing medical certificates, missing medical examinations, delays, and getting paid while you are waiting for a decision. Click on the links below to access the relevant information:
· Should you claim ESA?
· Can you get paid while waiting for a decision?
· Have you failed to submit a medical certificate?
· Have you failed to submit an ESA50 questionnaire?
· Have you failed to attend a medical examination?
· What can you do about delays in your assessment?
· What can you do if your contributory ESA stops after 52 weeks?
Should you claim ESA?
In order to be entitled to contributory ESA (C-ESA), you will need to satisfy the national insurance contribution conditions (NICs). In practice, this means that you will need to have paid sufficient NICs in the two previous financial years to the one in which you make your claim, although there are exceptions. See chapter 28 of the Handbook for more details.
In order to be entitled to income-related ESA (IR-ESA), you will need to satisfy a means-test. In practice, this means that you need to have income and capital (or savings) that are below certain limits, depending on your household circumstances. See chapter 3 of the Handbook for more details.
You can claim both C-ESA and IR-ESA if you satisfy both sets of conditions.
As well as satisfying these conditions, you will also need to supply evidence from your GP that you have a limited capability for work, usually with a fit note. This allows you to claim ESA for at least 13 weeks during which time the Department for Work and Pensions should arrange for a work capability assessment (WCA) to take place (although there are long delays presently).
You only qualify for ESA after the 13 week ‘assessment phase’ if you are assessed as having ‘limited capability work’ (LCW). To be treated as having LCW, you must score 15 points in the WCA or be treated as having LCW (e.g. because there would otherwise be a substantial risk to your health). See chapter 46 of the Handbook for more details.
If you are an EEA national, you must also have a ‘right to reside’ in the UK to qualify for IR-ESA and should seek advice about this before, for example, claiming IRESA instead of jobseeker’s allowance (JSA).
It is important to consider whether you are entitled to be paid ESA while you are waiting to be assessed, and if not, whether you should claim another benefit (e.g. jobseeker’s allowance (see Can you get paid while waiting for a decision?)
Can you get paid 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?
Under new rules from 30 March 2015[2], if you reclaim ESA on or after that date, and on your previous claim you were found not to have LCW following a WCA, 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?)
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?) 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.
Prior to 30 March 2015, you were entitled to ESA while you were waiting for a decision on your LCW unless you had received a decision that you did not have LCW within the previous 6 months. This rule still applies to claims made, or treated as made, before 30 March 2015.
The new rules are designed to close an alleged ‘loophole’, which allowed claimants to get ESA pending a decision and subsequent appeal, and then to reclaim ESA 6 months after the original decision and start the cycle again. The issue only arose, however, because of the DWP's failure to deal with claims, assessments and appeals in a reasonable period.
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 on p1040 of the 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 Could you claim another benefit instead of ESA?).
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.
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 on p710/11 of the 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’.
Have you failed to submit a medical certificate?
You must normally submit a medical certificate (known as a fit note) when you claim ESA.[3] You are entitled to a fit note from your GP free of charge. If you fail to submit a fit note or the DWP have not received or have lost it, you will not be paid ESA.
If this happens, you may able to get a new, duplicate, or backdated fit note from your GP. The DWP may agree to continue with your claim if you provide a missing fit note. A claim for ESA can also be backdated for up to 3 months with a backdated fit note.
Have you failed to submit an ESA50 questionnaire?
You are normally required to submit an ESA50 form after you have claimed ESA, as part of the LCW assessment process. The questionnaire is an assessment of how your illness or disability affects you with reference to the activities tested under the WCA.
You must be given at least 4 weeks to return the ESA50, and at least a further week following a second repeat request. If you fail to complete and return the questionnaire without good cause, you are treated as not having LCW and cannot get ESA.[4]
Problems can arise if you fail to return the ESA50 (e.g. because you were too ill), or you did not receive the ESA50 and reminder, or you sent it but DWP say they have not received it. If this happens, you should send another ESA50 as soon as possible (one you have, a duplicate or copy, or a requested replacement), explaining why it was not previously sent. This should allow your claim to proceed and payment to begin (if you are entitled to ESA pending assessment) by stopping you from being treated as not having LCW.[5]
Alternatively, it may be possible to persuade the DWP to decide that you have LCW without an ESA50, where, for example, there is strong evidence that you score 15 points in the work capability assessment, or that there would be a significant risk to your health if you were found not to have LCW. If the DWP has sufficient information to determine that you have LCW, it cannot require you to submit an ESA50.[6]
If you have mental health problems, the DWP has a policy of referring your case to Maximus for consideration if you have not returned the ESA50, rather than automatically refusing your claim.
If you have already received a decision that you are not entitled to ESA because you have failed to submit an ESA50, you can challenge the decision by requesting a mandatory reconsideration and appeal. Your grounds could include that you did submit an ESA50 (e.g. by providing proof of posting), or the DWP failed to send two requests separated by at least 4 weeks, or you had ‘good cause’ for the failure (eg it was due to your illness or non-receipt of the requests).