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Ask an Expert Employment and Support Allowance - July 2012

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 money.

Employment and Support Allowance

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 received.

On this page you will find:

Our experts


Disability Rights UK website (link opens in a new window)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).



London Borough of Redbridge logoWelfare Benefits Team, London Borough of Redbridge, offers benefits information, advice and support to London Borough of Redbridge (link opens in a new window) residents.



Alban HawksworthAlban 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.

ESA and holidays abroad

  • Are we allowed to go on holiday abroad? If so, for how long? What is the correct procedure to follow as we've been previously told to inform ESA Dept even if we leave our home for one day! Marie

Robbie Spence, Disability Rights AllianceRobbie 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 ESA.

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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Making a new claim

  • My husband got nil points after the ESA medical and is on Jobseeker's Allowance. He is now 59 and we were wondering whether to reapply for disability. Fifteen years ago he had his small intestines removed, and since 2010 he had a number of strokes and a heart attack. Bridget

Alban HawksworthAlban 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 information sheet.

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.

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ESA if your partner works

  • Will I get ESA if my partner works 36 hours a week? I am now in the WRAG and not sure if I should be getting ESA? Ken

Alban HawksworthAlban 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 support group.

To check what benefits you may be entitled to you can use our Benefits Calculator.

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No longer able to work

  • I was a self-employed builder a few years ago, but had an accident and couldn’t work so I went on to ESA. I decided to come off benefits and became a driving instructor. I am recovering from cancer, and take around 12 pills per day. I may not be able to continue working much longer. I used to get tax credits of £170 per week when my daughter was under 20. She is now 20 years old, and still at college, but I no longer get any tax credits for her. My tax credits also used to include the 50-plus element but that has gone. There seemed to be a lot of help for someone my age to come off state benefits but what they forgot to say is everything runs out, and now I am not earning anything like I was. I only get Working Tax Credit of £80 per week and my small wage around £150 per week. Is there any more help for someone like me? Ken

London Borough of Redbridge logoLondon 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 Credit.

Because you were self employed when you had your accident at work, you cannot claim Industrial Injuries Disablement Benefit.

You can use the Turn2us Benefit Calculator to check what you might be entitled to in your current circumstances.

For more information on benefits in relation to your daughter, read the Turn2us Young people and benefits information sheet

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Coming off Incapacity Benefit to start work

  • I have received Incapacity Benefit (IB) for around five years. My claim is for myasthenia gravis and mental health problems, which fluctuate. I may have the opportunity for work on a six-month contract, which I am prepared to try and see if my conditions don't deteriorate or affect me.
  • When I try this job will I get any funding to help me with equipment etc? 
  • If I can't do the job or when my contract finishes, will I be able to go back on IB or will I have to try for ESA?
  • Can I claim Housing Benefit? I live with a parent and it is their house.   Jaswinder

Robbie Spence, Disability Rights AllianceRobbie Spence: I’ve broken your question down into several parts.

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 relative”. 

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 Benefit “non-dependant 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.

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ESA in hospital

  • If someone on ESA is in hospital and receiving the income related and support components, do they lose any of this after 365 days? Grethel

Robbie Spence, Disability Rights AllianceRobbie 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 information sheet.

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ESA over 65

  • Can I claim ESA if I am over 65? I am 65 years of age in full-time employment. I am currently on Statutory Sick Pay (SSP) following an accident at work. It is unknown when I will be able to return to my job due to the injuries received. What happens once my 28-week period of receipt of SSP ends? Can I claim anything else and do I still have the right to be employed? Gethin

London Borough of Redbridge logoLondon 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 it.

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 window).

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 free 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).

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Applying to go into support group

  • Our client aged 63 was placed on contributory ESA 15 months ago. He was duly notified when his contributions ran out. He has applied to be placed on health-related ESA (he already receives Disability Living Allowance) and is not entitled to income-based ESA. That was in March 2012. He has heard nothing since except that his case in "under consideration". Is there any way of putting pressure on? Age Concern Blandford

London Borough of Redbridge logoLondon 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 limit.

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 an appeal.

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 tribunal hearing.

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Reclaiming ESA after time limit

  • I am supporting a client who has been in receipt of ESA for the last 12 months (WRAG) which has since come to an end following the introduction of the 12 month rule. The client has Parkinson’s disease which is degenerative, so it won't improve with time. He doesn't qualify for Income Support as his spouse works part time and they are above the threshold financially.
  • The options left open are for him to apply for Jobseeker's Allowance – which he wouldn't be able to physically do –  or under the linking rules re-apply for ESA and see if he has paid sufficient income tax 2009-2010 (breaking the 10-week linking rule)
  • His local job centre is unable to advise him what to do.
  • If it is to re-apply to ESA what is the correct process?
  • Is a better option applying for Jobseeker's Allowance, even though as a self-employed plumber with limited mobility, he would not be able to work? Danny

Robbie Spence, Disability Rights AllianceRobbie 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. 

DWP_guidance_DMG_Memo_13/12_(link_opens_in_a_new_window_PDF_file_size_74kb) says 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.   

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Will the ESA time limit apply while I'm waiting for an appeal to be decided?

  • My contribution-based ESA runs out after 365 days. I haven’t been placed in a group yet as I have to wait about 12 months for a tribunal. I am married and my husband works full time, so therefore I am unable to claim income-based ESA and also unable to have anyone represent me at my tribunal. I still have to pay my share of the outgoings of the household and feel as if I’m being discriminated against because I’m married. I have several disabilities and claim DLA mobility but not care as that was refused and can't appeal against that as I can't take the risk of losing my Motability car. If I was single or separated I would be able to get Income Support, it just seems so unfair for married people. Donna

Robbie Spence, Disability Rights AllianceRobbie 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 entitlement expires.

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 group.

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 advice service.

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.

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Autism and ESA

  • How will people who are diagnosed as autistic be assessed and what criterion would they have to satisfy if any? Mohamed

London Borough of Redbridge logoLondon 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:

  • Physical activities
  • Mental and cognitive activities.

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:

  • Learning tasks
  • Awareness of everyday tasks
  • Initiating and completing personal action
  • Coping with change
  • Getting about
  • Coping with social engagement
  • Appropriateness of behaviour with other people.

The effects of autism can vary from individual to individual but there are some key features to consider. A client may have difficulties with:

  • Non-verbal behaviour, such as eye contact, facial expression and body language
  • Developing appropriate peer relationships
  • Making spontaneous reactions to social situations. 

This list is not exhaustive, but it does give an idea of the complexities in explaining the range of problems faced by people with autism.

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 autism.

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Exceptional circumstances

  • Give a simple example where reg.35 applies instead of reg.29, please! Santakumar

London Borough of Redbridge logoWelfare 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 exceptional circumstances.

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 work.”

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.

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How to make an appeal

  • Several of my clients have had their ESA claims stopped. I have drafted an appeal but they have been told to re-apply by submitting a rapid reclaim. This is subsequently declined again. Can you please explain the process for when the WCA has been failed? Grace 

Alban HawksworthAlban 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 appeal.  

For general information about making an appeal see our Challenging benefits and tax credits decisions information sheet.    

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.

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Who can speak at an appeal hearing?

  • Can a person with no legal background speak on behalf of a friend at a ESA tribunal? Can they call a GP who is willing to speak on their behalf with tangible evidence that would prove that the friend indeed is not fit for employment.?  David

Alban HawksworthAlban 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 affects them.

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.

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Further information

Disclaimer:

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 decisions.

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 given.

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