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Ask an Expert - Disability Benefits - May 2011

ESA - Work Capability Assessment changes

• I see under the new Employment and Support Allowance (ESA) test I get no points for not being able to talk as I use a machine to type out what I want to say. Is there no thought given as to how fast and comfortable people can type? On a bad day I can do one letter every say four seconds, yet I am given no points for being disadvantaged as I can make people understand me, however long it takes. How this would possibly work in the work place I have no idea!  Another example of how the ESA test doesn't reflect the real world. (Erika)

Karen Holmes: Major changes to the Employment and Support Allowance (ESA) 'limited capability for work' assessment came into force on 28 March 2011. Previously, a person could score the full fifteen points required to satisfy the assessment and qualify for ESA if they could not speak at all. You are correct in identifying that the assessment has now changed and the category of 'speech' has been replaced with 'making self understood through speaking, writing, typing, or other means normally used, unaided by another person'.

To score fifteen points for this activity, someone who communicates by typing out what they want to say will now have to show they have significant difficulty conveying a simple message using this method. If they cannot show this they are unlikely to qualify for ESA unless they can accumulate points elsewhere in the test. There is a Work Capability Assessment (WCA) Handbook, used by the health care professionals who carry out the assessments, which gives guidance on the new rules. It makes clear that a person’s ability to write or type has to be considered when assessing the difficulty they may have conveying a message. This is where your speed of typing could come in.

However, although you have valid concerns about the length of time it would take you to convey longer messages and be understood in the work place, the assessment is only concerned with your ability to convey a very basic message, such as the presence of a hazard.

When faced with the assessment it is always best, where possible, to seek advice from a professional.

Use our Find  an Adviser tool to find a benefits adviser in your area.

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Incapacity Benefit reassessment

• I currently receive Income Support (IS)/Incapacity Benefit (IB) and Disability Living Allowance (DLA) (along with Housing Benefit). When the new assessments are due, will I go to the IB one first or will I have to wait for the new Personal Independence Payment (PIP) in 2013? In other words will the DLA/PIP review cancel out the sooner IB reviews or will I have to have both separately? (Phillip)

Karen Holmes: Disability Living Allowance reform, part of the Welfare Reform Bill, will not be introduced until 2013. The proposal is to replace it with a new Personal Independence Payment (PIP), so reassessments will be needed. Draft regulations for the PIP assessment criteria have been released by the Department for Work and Pensions to inform discussion as the Welfare Reform Bill progresses through Parliament but nothing is confirmed at this stage.

Incapacity Benefit (IB) was replaced by Employment and Support Allowance (ESA) in October 2008 and the remaining claimants of IB are starting the reassessment process to see if they are eligible to be transferred onto ESA. Most transfers are expected to take place before 6 April 2014. See our Incapacity Benefit Reassessment sheet for more information on the process. 

The important thing to note is that both processes are separate and the assessments involved will differ as the criteria for being awarded the benefits are different. Unfortunately this does mean you are likely to be assessed twice.

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Disability benefits and work

• I am at early stages of recovery following what appears to be a successful treatment for head and neck cancer. I will continue to have ongoing symptoms, such as difficulty in swallowing, fatigue, muscular pain, breathlessness, speech to a varying degree, for considerable time yet. However, I am thinking that I would like to return to work at some stage initially for short periods of time, perhaps as little as a couple of hours at a time with the view to build on that. I am currently on Incapacity Benefit, higher rates of mobility and care allowance and on permanent health insurance (PHI) payments through my employer. I have no previous experience, so would like you to generally clarify how best to approach the relevant parties. How does the transition normally work towards full salary payment from the employer without losing out financially in the meantime and also without delaying a return to work? I am keen to return even if it is for a few hours. (Tariq)

Karen Holmes: For advice on whether it is possible to return gradually to your full contracted hours after a period of sick leave, you will need to speak to an employment specialist and consult your employment contract. ACAS may be able to assist by advising on the employment rules and your rights in this situation. You can call them on 08457 47 47 47. Once you know what your rights are regarding returning to work gradually, you can communicate your wishes to your employer. The benefits advice in this situation is provided below.

Citizens Advice Specialist Support: It is possible to do limited amounts of work and still retain entitlement to Incapacity Benefit – any work done for payment of £20 or less per week will not affect entitlement to Incapacity Benefit at all. This is known as permitted work ‘lower limit’. If earnings exceed £20 per week, then as long as they do not exceed £95 per week and work is done for less than 16 hours per week, Incapacity Benefit can still continue. This is known as permitted work ‘higher limit’. Permitted work ‘higher limit’ can normally only be done for a maximum of 52 weeks, but as long as you continue to receive the high rate care component of Disability Living Allowance, you can do this work indefinitely without it affecting your Incapacity Benefit. Other types of work, such as supported work (i.e. work which is supervised by someone who is working for a local authority, public authority, or voluntary organisation, whose job it is to find work for people with disabilities) or work done under a treatment programme with medical supervision, can also be done indefinitely whilst receiving Incapacity Benefit, as long as earnings do not exceed £95.

There are no rules preventing payment of Disability Living Allowance if you start work whether full or part time, as long as your care and mobility needs have not improved. However, if your award of high rate care was made under the ‘special rules’ for terminal illness and there has been a change in your diagnosis, then you need to inform the Department for Work and Pensions (DWP).

It is advisable to inform the DWP if you start any work, even if the work would not affect entitlement to either Incapacity Benefit or Disability Living Allowance. However, if you do start work this may lead the DWP to re-assess your entitlement to either benefit if they feel your condition has improved to such an extent that you no longer qualify.

• I am currently receiving contribution-based Employment and Support Allowance (ESA) and have been doing permitted work which ends on 22 May 2011. I have primary progressive multiple sclerosis (MS) and work for a local hospital where I receive a large amount of support and assistance, I think it would be difficult for me to work anywhere else because of the support I receive. I am informed by the Department for Work and Pensions (DWP) that I either have to give up the job (currently I work 12 hours most weeks) and not work for another year, or give up the ESA. My doctor has written a letter stating that it is good for me to work and carry on claiming ESA, because when I am too ill to work I can still claim the ESA. Although someone working for DWP has said it is a silly rule because I am never going to get better, there is nothing they can do: it is the rule by the Government. It seems a silly rule. Is there anything I can do? I don't want to give up either work or the ESA. (Denise)

Citizens Advice Specialist Support: It is possible to do limited amounts of work and still retain entitlement to Employment & Support Allowance (ESA). Any work done for payment of £20 or less per week will not affect entitlement to ESA at all. This is known as permitted work ‘lower limit’. If earnings exceed £20 per week, then as long as they do not exceed £95 per week and work is done for less than 16 hours per week, ESA can still continue. This is known as permitted work ‘higher limit’. Permitted work ‘higher limit’ can only normally be done for a maximum of 52 weeks, after which there must be a break in work of at least 52 weeks or a break in your ESA claim of at least 12 weeks. However, these rules do not apply (and so you can do permitted work ‘higher limit’ indefinitely) if you are in the support group for ESA.

Other types of work, such as supported work (i.e. work which is supervised by someone who is working for a local authority, public authority, or voluntary organisation, whose job it is to find work for people with disabilities), or work done under a treatment programme with medical supervision can also be done indefinitely whilst receiving Employment & Support Allowance, as long as earnings do not exceed £95.

Unfortunately there is no way round these rules, so if you are subject to the 52 week limit, your Employment & Support Allowance will end if you carry on working, unless you can drop your earnings to £20 per week or less. You would then be able to work again under the permitted work ‘higher limit’ rules after 52 weeks.

• If someone is on Statutory Sick Pay (SSP) and wants to return to work gradually, does this affect their SSP money? For example, on Employment and Support Allowance (ESA) you can work specific hours before benefit is affected. (Helen)

Citizens Advice Specialist Support: Statutory Sick Pay (SSP) is payable if you are sick and unable to work in your normal job. Therefore any work you do will end your entitlement to SSP, even if it is just for a short period of time. If you then need to re-claim SSP again, you would need to satisfy the conditions of entitlement all over again, unless the gap between your SSP claims was eight weeks or less, in which case your claims would be ‘linked’ and treated as a single period.

It is possible, however, to receive SSP in respect of one employment, yet still work in another employment, e.g. if the types of work are different and you are unable to perform one job, but not unable to perform the other. However, the employer paying you SSP must continue to be satisfied that you remain unable to do your normal job, so if you start another job, this may lead them to reassess your entitlement.
 

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Disability benefits when unable to work

• If you are self-employed and have to give your business up through health reasons, would you be entitled to any benefits. (Val)

Marcia Scarlett: From the information that you have given, you could claim Employment and Support Allowance (ESA) which is a benefit for people with limited capability for work because of ill health and or disability.

There are two types of ESA, contributory which is based on the type of national insurance that a claimant has paid or income related for claimants who have not paid the relevant national insurance contributions. An initial claim for ESA will usually be made by telephoning Jobcentre Plus on freephone 0800 055 6688. A customer statement will then be sent to you for checking but there is no requirement to sign it or return it, unless the information recorded is incorrect.

Depending on what your health problem is, there may be a possibility that you can claim Disability Living Allowance (DLA). This is a non-means-tested, non-contributory benefit paid to people with care and/or mobility needs as a result of a mental or physical disability. It is made up of:

• a care component for help with personal care needs, payable at one of three rates; and
• a mobility component for help with walking difficulties, payable at one of two rates.

You may receive one, or both, of the components paid at the rate appropriate to your care and/or mobility needs.

You could check the ESA information page and DLA information page for further details about these benefits and how to claim them.

Karen Holmes: If you have a low income you may also be eligible for benefits which aren't disability related such as Housing Benefit or Council Tax Benefit so it is worth using the Turn2us Benefit Checker to ensure you are not missing out.

• My son, who is 23 and living with us, is recovering from cancer. He has reached the one year clear stage, but when he was diagnosed he lost his job. He has to visit the hospital and doctors, at present. He stays in his bedroom, he has no income, no support, nothing to help with, clothing, or any living costs. Is there anything he can claim to help. (Robin)

Citizens Advice Specialist Support: If your son is currently unable to work due to illness/disability, then he can claim Employment & Support Allowance (ESA). He may qualify for this based on his national insurance contribution record from his job, but even if he does not he could still qualify if he has no other income/capital (this is known as income-related Employment and Support Allowance). He can claim ESA online or by phoning the contact centre on 0800 055 6688. He will need to provide evidence of his illness/disability – a sick note from his doctor will be sufficient initially but at some point he will be called in for a Department for Work and Pensions (DWP) medical assessment to determine whether payments of ESA can continue. Claims can be backdated for three months. If he qualifies for income-related ESA, he should also be eligible for health benefits, such as free prescriptions and assistance with the costs of travel to hospital.

He may also qualify for Disability Living Allowance (DLA) if he requires assistance with his personal care needs or if he has mobility problems. This is a non-taxable, non means-tested benefit but it cannot be backdated so he should claim straight away if he thinks he may be entitled. He can claim DLA online or by phoning the Benefit Enquiry Line on 0800 882200

Karen Holmes: As well as benefits your son may be eligible to apply for a payment from a charitable fund. The criteria for each fund varies so using our Grants Search database is an easy way to search over 3,500 funds for ones which may be relevant.

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Personal injury compensation and benefit entitlement

• If I have received compensation for an accident, am I entitled to any further benefits from the state? (David)

Karen Holmes: Your benefit entitlement can depend on several factors including your capital. However, if you are over Pension Credit age the amount of the personal injury compensation you were paid will not count as capital. If you are under Pension Credit age, the payment will not count as capital for 52 weeks from the date the payment was received - if you put it into a trust it is ignored without time limit.

As well as capital, benefit entitlement can depend on your income, whether you are working/ capable of work and whether you have any care or mobility needs. If you live with a partner their employment and income may also have an affect on your benefit entitlement.

Because there are several factors involved, it is not possible to advise you which benefits you are entitled to. If you put your details into the Turn2us Benefit Checker your entitlement to means-tested benefits will be checked for you and possible entitlement to other benefits will be indicated.

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Additional financial support

• I asking on behalf of my mum, she receives incapacity benefit aged 57, she also has disability care and mobility not sure which level, she rents a private house at 525 a month, 360 is paid for her and Council Tax also. We have just applied for her to have Income Support which turns out to be £2.05 a week. Is there anything else she can claim? Due to her health problems she has taken out a mobility car to get her to hospital etc. (Lorna)

Karen Holmes: You could start by putting your mother's details into the Turn2us Benefit Checker to see if she is entitled to any further benefits but it would seem from the information provided that she is already receiving the relevant means-tested benefits for her circumstances. 

If she is having financial difficulties, she could consider claiming a Discretionary Housing Payment from the local authority to help meet the shortfall in her rent. These payments are separate to Housing Benefit, and as the name suggests are discretionary, so there is no right to receive one. The money comes from a limited budget which local authorities distribute; they decide whether to make a payment, how much to pay, and for how long. Each authority will have criteria by which payments are awarded and they are likely to go to those in priority groups, such as those with disabilities, who need to stay in their current home. Claim procedures vary so you should make contact with the local authority directly to find out more.

If it has been some time since your mother's Disability Living Allowance (DLA) claim was last reviewed, and her care and/or mobility needs have increased, she may be entitled to a higher rate of one or both of the components. If this may be the case you should seek advice from a local benefits adviser as having your claim reviewed could potentially lead to an increase or a decrease in the award.

If there is a particular item your mother is in need of, you could use our Grants Search database to find a charity which may be able to help. Every fund has a different purpose and eligibility criteria so the Turn2us Grant Search database helps you search over 3,500 charitable funds by matching your details (personal background, location, specific help required) with the funds' criteria.

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Further help and information

• Work Capability Assessment (WCA) Handbook
• ESA information page
• DLA information page
• Incapacity Benefit Reassessment
• Disability Living Allowance reform / Personal Independence Payment
• Useful Links - Disability and Health
• Turn2us Benefits Checker
• Turn2us Grant Search
• Turn2us Find an Adviser

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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Date of publication: 11 May 2011