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Every month, through our
Ask an Expert feature, Turn2us users are given the chance to ask a
panel of experts their specific questions relating to benefits,
grants and managing
This month we invited you to submit your questions on Employment
and Support Allowance to our expert panel.
Here are the answers to a selection of the questions we
On this page you will find:
Robbie Spence is an adviser
with the Benefits of Working Team and the Tribunal Support
Unit at Disability Rights UK
(link opens in a new window), the national charity that
publishes the Disability Rights Handbook.
Robbie has 25 years experience as a welfare benefits adviser for
local authorities and charities, including Action on Hearing Loss
(formerly RNID) and London Advice Services Alliance (LASA).
Welfare Benefits Team, London Borough of
Redbridge, offers benefits information, advice and support
London Borough of Redbridge (link opens in a new
Hawksworth is Turn2us's Welfare Benefits Specialist.
Alban has wide experience of advising about
means-tested benefits. He is an experienced benefits
caseworker who has represented people at many ESA and
disability benefits appeals tribunals.
Spence: You are allowed to go on holiday abroad while in
receipt of Employment and Support Allowance
(ESA) – whether it is contributory ESA or income-related
The basic rule is the “four-week rule”: you can continue to be
entitled to ESA for the first four weeks of a temporary absence
from Great Britain (as long as you continue to satisfy the other
conditions of entitlement).
There are further rules about NHS treatment abroad and rules
about accompanying a child or partner abroad.
As to the correct procedure, the important thing is that, for
ESA and most other benefits, there is no definition of what counts
as “temporary absence”. It is your responsibility as a claimant to
show Jobcentre Plus that your absence is going to be temporary. You
should therefore give them full details before you leave of why you
are going abroad, how long you intend to be abroad, and what you
intend to do while you are abroad.
Please note: there are different rules for other benefits, so
always check with the office that pays your benefit.
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Alban Hawksworth: I am sorry to hear
about your husband’s illnesses. It is important to think about what
your husband’s condition is like now. If he would be unable to
work, you should consider making a new claim for ESA. He will need
to get a medical certificate (now commonly called a fit note (link opens in new
window)) from his GP to support a new claim. There is more
information on how to claim in our ESA
If your husband needs personal care and has
mobility problems you should also consider claiming Disability Living Allowance.
We would suggest you seek advice from a benefits adviser. You
can use our Find an Adviser tool to
find a local one.
If you have not already done so, you may find it helpful to have
contact with the Stroke Association (link opens
in a new window) and the British Heart Foundation (link
opens in a new window) for general support and information in
relation to your husband's health conditions.
Alban Hawksworth: You may be receiving
contributory ESA which is based on your
national insurance contributions.
This is paid to you as an individual and it
does not matter what income or earnings your partner may have.
However, because of changes to ESA from May 2012, contributory ESA
is time limited. You can only receive contributory ESA for 52 weeks
if you are placed in the work-related
activity group (WRAG). You can claim income-related ESA when
the one-year time limit expires, but you will be assessed as a
couple. If your partner works for 24 hours a week or more you can
only continue to receive contributory ESA if you are in the
To check what benefits you may be entitled to
you can use our Benefits Calculator.
London Borough of Redbridge Welfare Benefits Team:
Because of changes in your circumstances and changes to tax credit rules you have unfortunately lost a
substantial amount of support from your tax credit award. From
April 2012, the 50+ element has no longer been paid with Working Tax Credit (but in any event, it was
only ever awarded for 12 months at the start of a new claim). Also
when your daughter turned 20, and was no longer treated as your
dependant, you could no longer receive Child Tax Credit and Child Benefit for her.
If your health problems mean that you are no longer able to work
(or you have to reduce your hours to less than 16 hours a week),
you may be able to claim ESA again.
However, you will need to get a medical certificate (now commonly
called a fit note (link opens in new
window) from your GP to start your claim. You may also be able
to claim Disability Living Allowance if
you have care or mobility needs. You may be able to claim Pension Credit if you or your partner are over
the qualifying age for Pension
Because you were self employed when you had your accident at
work, you cannot claim Industrial Injuries
You can use the Turn2us Benefit
Calculator to check what you might be entitled to in your
For more information on benefits in relation to your daughter,
read the Turn2us Young people and benefits
Spence: I’ve broken your question down into several
What if you cannot do the job? Will you be able
to go back on IB when the contract finishes or have to try for ESA?
Sometimes if you stop claiming benefit to begin work, you can go
back on to benefit on the same rate or terms as before. But it is
not possible to do this if you stop claiming IB to begin work
because IB has been abolished for new claims.
If your job stops, or your condition worsens, you would have to
make a new claim for ESA or Jobseeker’s allowance.
Can you get help while you try the job? If you
take up employment of 16 hours a week or more, you can no longer
claim IB. See the Turn2us Starting or
looking for work information sheet and the
Disability Rights UK Factsheet F10: Tax credits - extra money due
to disability (link opens in new window).
If the job is for less than 16 hours a week, you are allowed to
work under the “permitted work” rules because you are on incapacity
benefit. See the
Disability Rights UK Factsheet F35 Work for people who are
sick or disabled (link opens in new window).
Can you claim Housing Benefit while you live with a
parent in their house? No. A parent counts as a “close
relative” and you cannot receive any Housing Benefit (HB England, Scotland, Wales) (HB Northern Ireland) or Council Tax Benefit if you pay rent to
someone who also lives in the accommodation and is a “close
In addition, if your parent receives Housing
Benefit or Council Tax Benefit in their own right,
these benefits may go down if your income goes up. This is because
of the rules about Housing Benefit or Council Tax
deductions”. These are deductions made from someone’s Housing
Benefit or Council Tax Benefit on the assumption that a
non-dependant usually makes a contribution to outgoings.
There is more information about the issues you raise in the
Rights UK Factsheet F50: How to claim your in-work benefits (link
opens in new window).
Spence: If you go into hospital, income-related ESA can
continue to be paid indefinitely. In some circumstances it won’t be
reduced but in others it will.
The reductions relate to the additional components in
income-related Employment and Support Allowance – the work-related
activity component and the support component – and to the enhanced
disability premium. These are removed after 52 weeks.
Also, if benefits such as Disability
Living Allowance, Attendance
Allowance or Carer’s Allowance are
withdrawn, the premiums relating to these benefits will most likely
have already been removed well before 52 weeks in hospital.
See Turn2us Benefits and Hospital
London Borough of Redbridge Welfare
Benefits Team: Normally once Statutory Sick Pay ends, most people go onto
ESA. However you cannot claim ESA if you are over State Retirement Pension age. You do not say
whether you have already claimed your State
Retirement Pension. If you have deferred claiming
your pension (link opens in new window) in order to get a
lump sum or a higher amount you may want to consider claiming
it now, if you are unable to return to work. Your pension will be
increased for every complete five weeks you put off claiming
You can use the Turn2us Benefit Calculator to check what you might
be entitled to if you cannot return to your job - you may be
entitled to Pension Credit and
help with your housing costs.
If your accident was caused
by your employment you should consider making a claim for
Industrial Injuries Disablement
Benefit. This is a no-fault scheme.
You may also want to
consider consulting a personal injury solicitor, but you may have
to pay for legal help. The Citizens Advice Adviceguide website has
more information on personal injuries (England, Wales and Northern
Ireland) (link opens in a new window)/more
information on personal injuries (Scotland) (link opens in a new
You should also consider
applying for Attendance Allowance if
you require help with personal care and this is likely to last for
at least six months.
As for whether you have
right to be employed – there is no longer a default retirement age
(link opens in new window), so your employer cannot make you
retire on the basis of your age alone. If you are off on long-term
illness, the employer should allow a reasonable amount of time for
you to recover from illness, but if it unlikely that you will
recover in reasonable time, or your job cannot be kept open or your
employer cannot get cover for you, your employer may have grounds
to dismiss you.
We would suggest you seek
advice from a specialist employment adviser. You can use the
Turn2us Find an Adviser tool to find
local advise from an organisation such as Citizens Advice.
Acas, the Government's employment relations service, has a
telephone helpline on employment rights and workplace
issues (link opens in a new window) and more
information of age discrimination on the Acas website (link
opens in new window).
London Borough of Redbridge Welfare Benefit Team:
It appears your client was initially was placed in the work related activity group (WRAG) when he was
awarded ESA. Because of changes to ESA from May 2012, contributory
ESA is only paid for 52 weeks and your client's ESA has now run
out. He has applied to be placed in the support group, which can be paid without time
It is important to be clear whether this application is an
appeal against the original decision placing him in WRAG or a claim
that his condition has deteriorated since that decision was made
and that he now qualifies to go into the support group. The time
limit to make an appeal against a benefit decision is normally
one month, but this can be extended by up to a further 12 months if
you can show good cause for making the appeal late. It appears that
the decision to place your client in the WRAG was made more than 13
months ago, so he will be outside the absolute time limit to make
Your client can make an application to be placed in the support
group if his condition worsened at some point after he was placed
in the WRAG. This application will have to be based on a change of
circumstances from the date his condition worsened, and the client
will have to provide medical evidence from that time. You say your
client applied to be placed in the support group around March 2012,
which is around four months ago. You can contact the Jobcentre Plus
benefit delivery centre that
administers his ESA to find out what has happened to this
application and also to see if there is any further evidence they
require to decide his application. If they refuse to place him in
the support group, he can appeal that decision.
Unfortunately, there can be long delays in getting to an appeal
Spence: I’ve broken your question down into two parts:
Firstly, I don’t think your client even needs to think about
whether he is physically fit enough to claim Jobseeker's Allowance (JSA). He can’t get
income-based JSA for the same reason as he can’t get
income-related ESA: his spouse works and they are above the
threshold financially. He will not qualify for
contribution-based JSA if he has been self employed over the last
three tax years. National insurance contributions by
self-employed workers are Class 2 contributions and don’t count
towards entitlement to JSA. (Only Class 1 contributions, payable by
employed workers, count for JSA.)
As to ESA there are two possibilities. On the one hand, he can
get back on to contributory ESA if he can be placed in the support group or if his health significantly
deteriorates in the future.
On the other hand – and I suspect this is the point that you are
most interested in – there is a way he may be able to claim another
year of contributory ESA, while remaining in the work-related activity group, even though he has
reached his one-year contributory ESA time limit.
this is possible where there has been a break of 12 weeks in ESA
entitlement as the person can then be considered as having begun a
new period of limited capability for work:
“A further claim for contribution-based ESA where the claimant
has already been entitled for 365 days on the basis of the
contribution conditions can succeed if the claimant satisfies the
first and second contribution conditions … and
in relation to the second contribution condition, at least one tax
year is later than the second of the two years on which the
previous entitlement was based.“ (paragraph 23)
The difficulty for advisers is that clients may not know
their exact national insurance
contribution record details or that a successful ESA reclaim
after 12 weeks may be possible.
Disability Rights UK is taking up with the DWP the issue of it
automatically informing those affected by the 12-month time limit
if and when they can successfully reclaim ESA due to their national
insurance contribution record.
Spence: It sounds like you are concerned that your
contributory ESA will run out before there is a final decision on
your claim because you are having to wait around 12
months for a tribunal appeal hearing.
As you say, you cannot get income-related ESA because your
husband’s earnings are taken into account as income.
For you to get contributory ESA, there are several
possibilities, some more likely than others. In order of likelihood
they are as follows.
If you win your appeal and are placed in the ESA support group you will receive contributory
ESA indefinitely. If a tribunal places you in the ESA work related activity group you will
receive arrears of the work related activity component from the
13th week of your claim up until the 52nd week when your
Depending on your national insurance
contribution record, you may be able to claim another year of
contributory ESA, while remaining in the work-related activity
group, even though you have already reached your 365-day
contributory ESA time limit.
Further information on this is contained in my answer to
the question about re-claiming
ESA after time limit.
If you lose your appeal, you can claim ESA once again. You will
receive the basic rate of ESA during the 13 week ‘assessment
phase’. Following a work capability
assessment examination, a decision will be made as to whether
you have a limited capability for work and can be placed in the
work related activity or support
I do understand your concern at the possibility of losing your
current entitlement to the higher mobility rate of Disability Living Allowance if you pursue
an award of the care component. However, I would suggest that you
seek advice from a local advice centre about this and on the
possibility of this centre making representations on your
behalf in relation to your ESA appeal. You can use the Turn2us Find an Adviser tool to find a local
Disability Rights UK agrees that the time limiting of
contributory ESA disadvantages couples where one of them is working
and we have campaigned with disability and other
organisations against the time limit.
London Borough of Redbridge Welfare Benefits Team:
Everyone who claims ESA has to go through the same process
regardless of the health condition they have. The test is called
the Work Capability Assessment
(WCA) and is in two parts. The limited capability for work
(LCW) determines whether a person can get ESA, and the
limited capability for work-related
activity (LCWRA) will decide whether they are placed in
the support group or the work-related group.
The LCW assess a person's ability to carry out a number of
activities in two categories:
This will normally be assessed at a face-to-face examination but
it is possible that some people may be assessed on the written
evidence if their condition is severe enough.
At a face-to-face assessment, the assessor will allocate points
in respect of the difficulty the claimant has with each activity.
Autism will be assessed in the mental and cognitive part of the
LCW, which has seven activities:
The effects of autism can vary from individual to individual but
there are some key features to consider. A client may have
This list is not exhaustive, but it does give an idea of the
complexities in explaining the range of problems faced by people
For example, under the 'coping with change' activity, an
individual with autism may find sudden or unexpected changes
overwhelming to such an extent that they will remain upset or
distressed for the rest of the day.
The National Autistic Society (link opens in a new window)
supports people affected by autism and may be able to advise you
further on benefits and other aspects of living with
Welfare Benefits Team: The regulations you refer to
are the ESA rules regarding exceptional circumstances. This is in
relation to the Work Capability Assessment
(WCA) for ESA, and the circumstances where a claimant can be
treated as having limited capability for
work (LCW), to go into the work-related group (WRAG) or
limited capability for work-related
activity (LCWRA) to go into the support group, on the basis of
Regulation 29 of
The Employment and Support Allowance Regulations 2008 (link opens
in new window PDF file size 655kb) allows for a person to be
treated as having limited capability for work in exceptional
circumstances. This is the basic test to be entitled to
ESA. If you pass this test, you will go into the work
related activity group (WRAG). This is sometime referred to
by Jobcentre Plus decision makers and by appeal tribunals
as the ‘non-functional descriptor’.
Regulation 29 allows that a claimant who has not scored enough
points under the WCA can "be treated as having limited capability
for work if ... there would be a
substantial risk to the mental or physical health of any person if
the claimant were found not to have limited capability for
Regulation 35 of
the same regulations (link opens in new window PDF file size
655kb) allows for people to be treated as having limited
capability for work-related activity on broadly the same terms as
regulation 29. That is if there would be a there would be a
"substantial risk" if the claimant were found not to have limited
capability for work-related activity. This is the test to go into
the support group.
An example might be: A person claims ESA following a bout of
illness. He has a WCA medical assessment and is awarded 0 points.
Therefore, he is found not to have limited capability for work
(LCW) and not entitled to ESA. He appeals against the decision with
a letter from his psychiatrist indicating that he is prone to
unpredictable episodes of violent behaviour, which could be
dangerous for him or others. Jobcentre Plus looks at the decision
again and revises it in his favour because exceptional
circumstances apply. The evidence shows that there would be a
danger to a person’s mental or physical health if he were found not
to have LCW or LCWRA. If only regulation 29 applies, the client
will be placed in WRAG. If both regulation 29 and regulation 35
applies the client can be placed in the support group.
Hawksworth: When you first claim ESA, the Department of
Work and Pensions (DWP) will accept medical certificates from your
GP (now commonly called a fit note (link opens in new
window)) as evidence that you have limited capability for work.
After around 13 weeks, the DWP will carry out a Work Capability Assessment (WCA). If this finds
that you do not have limited capability for
work (LCW) you will no longer be entitled to ESA. You can
appeal if you disagree with the WCA decision and the assessment
rate of ESA can be paid until the appeal is decided. There is no
need to make another claim.
In the cases you mention, I would advise you
to contact the DWP and explain that your clients have appealed
against the decision of the WCA.. Ask the DWP to process the appeal
requests through the correct procedure. If they say that the
clients did not appeal within the one month limit, ask that the
appeals be accepted as late appeals. An appeal can be accepted up
to 12 months after the deadline has passed if you can show that
there was a good reason why you could not make the appeal on time.
If your clients were told by the DWP to make another claim rather
than appeal, I think you could argue that they were misadvised by
the DWP and this should be accepted as good cause for a late
For general information about making an appeal
see our Challenging benefits and tax credits decisions
If your client’s cases do go to appeal you
will need to consider what sort of medical evidence you can gather
to show that they do have LCW.
Hawksworth: The simple answer to your question is yes, the
person who is appealing can ask another person to accompany them to
their appeal. There are no formal rules about who can speak at a
tribunal hearing. The tribunal should accept any relevant evidence
that is presented to it. It can often be very helpful for someone
who knows about that person’s medical condition to explain how it
However, you should bear in mind that an ESA
appeal will be concerned with whether a person qualifies under the
ESA rules. The Work Capability Assessment
(WCA) is a points-based assessment, which depends on what
practical difficulties that person has with a number of specified
physical and mental activities. It is very important that any
medical evidence you offer should relate to the specific tests set
out in the WCA. If you have not already done so, we would suggest
you seek advice from a benefits adviser if you are going to an ESA
tribunal. You can use our Find an Adviser
tool to search for a local one.
The opinions expressed are those of the expert only. The answers
and associated material are for general information only and do not
constitute financial, legal or other form of advice. You should not
rely on this information as an alternative to financial, legal or
professional advice from a qualified professional for your own
particular situation. The answers are given in response to specific
questions submitted by other users. You should not rely on this
information alone to make (or refrain from making) any
Whilst effort has been taken to ensure the accuracy of the
information, Turn2us does not accept any liability for this
information. It is the responsibility of users to check the
accuracy of relevant facts and opinions given as part of any answer
before entering into any commitment based upon the information
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