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ESA Linking rules
- julesg
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13 years 1 month ago #51136 by julesg
ESA Linking rules was created by julesg
I am currently claiming ESA and fall under the linking rules having made this claim within 104/12 weeks. When I spoke to the Job centre plus they stated although they will link the claim I am only entitled to assessment phase until my Medical and if I pass then I will be back paid to the first day of claim. I am aware that this has been a point of contention and the DWP has agreed to pay straight away after a dispute, but their guidelines state not to pay straight away.
Can anybody find me evidence to support my belief that as the claim is a continuation of the original claim then i should immediately be paid accordingly.
Any suggestions greatly accepted.
Julesg
(PS my current claim may be backdated to Nov 2010, which means i am on the 12 week rule as it links to my claim prior to my work in August, or than the 104 week rule if they do not back date)
Can anybody find me evidence to support my belief that as the claim is a continuation of the original claim then i should immediately be paid accordingly.
Any suggestions greatly accepted.
Julesg
(PS my current claim may be backdated to Nov 2010, which means i am on the 12 week rule as it links to my claim prior to my work in August, or than the 104 week rule if they do not back date)
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- Gordon
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13 years 1 month ago #51141 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:ESA Linking rules
julesg111
From The Decision Makers Guide, Chapter 41.
41111
Claimants do not have to serve waiting days if there is a linking Period of Limited Capability for Work (PLCW). There is a linking PLCW when a PLCW is separated from another such period by not more than 12 weeks. (ESA Regs, reg 145(1))
41112
Where a claimant is a Work and training beneficiary(ies) (WTB), any PLCW which is separated from another such period by not more than 104 weeks is to be treated as a continuation of the earlier period1. See DMG Chapter 42 for guidance on WTBs. (ESA, Regs, reg 145(2))
And with regard to payment, from Chapter 44
44511
Separate periods of entitlement to ESA, IS or JSA may link. The normal rule is that where a claimant or their partner
1. is entitled to ESA(IR), JSA(IB) or IS and
2. is entitled to an add back and
3. ceases to be entitled to ESA(IR), JSA(IB) or IS for a continuous period of twelve weeks or less
they will continue to qualify for an add back on the new claim for ESA, JSA or IS1. (ESA Regs, Sch 6, para 20(1)(b))
44512
If the break in entitlement to ESA(IR), JSA(IB) or IS is more than twelve weeks an add back is not normally payable on the new claim. The exception is where an IS claimant or the partner of an IS or JSA(IB) claimant is a WtWB. See DMG 44513 for guidance in such cases. (Sch 6, para 20(1)(b))
So the critical factor is whether you are within the 12 weeks or not.
Gordon
From The Decision Makers Guide, Chapter 41.
41111
Claimants do not have to serve waiting days if there is a linking Period of Limited Capability for Work (PLCW). There is a linking PLCW when a PLCW is separated from another such period by not more than 12 weeks. (ESA Regs, reg 145(1))
41112
Where a claimant is a Work and training beneficiary(ies) (WTB), any PLCW which is separated from another such period by not more than 104 weeks is to be treated as a continuation of the earlier period1. See DMG Chapter 42 for guidance on WTBs. (ESA, Regs, reg 145(2))
And with regard to payment, from Chapter 44
44511
Separate periods of entitlement to ESA, IS or JSA may link. The normal rule is that where a claimant or their partner
1. is entitled to ESA(IR), JSA(IB) or IS and
2. is entitled to an add back and
3. ceases to be entitled to ESA(IR), JSA(IB) or IS for a continuous period of twelve weeks or less
they will continue to qualify for an add back on the new claim for ESA, JSA or IS1. (ESA Regs, Sch 6, para 20(1)(b))
44512
If the break in entitlement to ESA(IR), JSA(IB) or IS is more than twelve weeks an add back is not normally payable on the new claim. The exception is where an IS claimant or the partner of an IS or JSA(IB) claimant is a WtWB. See DMG 44513 for guidance in such cases. (Sch 6, para 20(1)(b))
So the critical factor is whether you are within the 12 weeks or not.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- julesg
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13 years 1 month ago #51152 by julesg
Replied by julesg on topic Re:ESA Linking rules
Thanks i'd seen 41111 & 41112, but the stuff from chapter 44 I had not been able to find. So will I be assed under the 12 week or 104 week. The issue is complicated as I went off sick within 12 weeks but my employer wrongly paid me SSP, where as I should have claimed ESA. However if I back date the claim by 3 month it takes me to within 12 weeks of the initial claim. I have had a log talk with the benefit worker who is assessing my claim and she seems to be going this way, in fact she was the one who made me aware of the fact I could and should back claim. The good news is my employer has just emailed me to say they will not seek back the SSP, which means the weeks of SSP before my back dated claim will not have to be paid back. Fingers crossed they do approve my claim being back dated and linked under the 12 week rule. If not I will have to face a new medical under the new rules and as the walking area is my key area for points I'm hopping that any medical will not happen soon.
Thanks again Gordon
Juliesg
Thanks again Gordon
Juliesg
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