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365 day rule
- carmind
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11 years 10 months ago - 11 years 10 months ago #106086 by carmind
365 day rule was created by carmind
A client of mine has had payments of her contribution-based ESA stopped under the 365 day rule and cannot claim Income-based.
However, she wishes to continue claiming contribution-based ESA so that she will receive NI credits and can access the Work Programme.
The DWP have said she cannot do this. Is that correct?
However, she wishes to continue claiming contribution-based ESA so that she will receive NI credits and can access the Work Programme.
The DWP have said she cannot do this. Is that correct?
Last edit: 11 years 10 months ago by .
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11 years 10 months ago - 11 years 10 months ago #106090 by
Hi c,
Your client can continue to claim ESA for the purposes of receiving NI Credits only.
As long as they continue to comply with any reassessment criteria, i.e. ESA50, face to face, etc, and continue to be assessed as LCW.
If they are in receipt of NI Credits only for State Pension purposes, they do not have to comply with any compulsory WFI, WRA requirements.
It may be important to keep a live continuous assessment of LCW, as if they start to suffer from different medical conditions, or their current condition deteriorates to such an extent that they may then qualify for The SG, they can request a supersession/review of their WRAG award.
If as a result of the above they were placed into The SG, then payment of their CB ESA would be reinstated, and payment would continue as long as they remained in The SG.
The same would apply if they were placed into The SG at some future reassessment.
If their claim is closed, and they therefore do not have a continuous assessment of LCW, (taking into account the 12 weeks linking rule) then the above could not apply.
bro58
Replied by on topic 365 day rule
carmind wrote: A client of mine has had payments of her contribution-based ESA stopped under the 365 day rule and cannot claim Income-based.
However, she wishes to continue claiming contribution-based ESA so that she will receive NI credits and can access the Work Programme.
The DWP have said she cannot do this. Is that correct?
Hi c,
Your client can continue to claim ESA for the purposes of receiving NI Credits only.
As long as they continue to comply with any reassessment criteria, i.e. ESA50, face to face, etc, and continue to be assessed as LCW.
If they are in receipt of NI Credits only for State Pension purposes, they do not have to comply with any compulsory WFI, WRA requirements.
It may be important to keep a live continuous assessment of LCW, as if they start to suffer from different medical conditions, or their current condition deteriorates to such an extent that they may then qualify for The SG, they can request a supersession/review of their WRAG award.
If as a result of the above they were placed into The SG, then payment of their CB ESA would be reinstated, and payment would continue as long as they remained in The SG.
The same would apply if they were placed into The SG at some future reassessment.
If their claim is closed, and they therefore do not have a continuous assessment of LCW, (taking into account the 12 weeks linking rule) then the above could not apply.
bro58
Last edit: 11 years 10 months ago by .
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- Gordon
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11 years 10 months ago - 11 years 10 months ago #106091 by Gordon
We often simplify the rules for this, but as you question is about entitlement I will be precise.
The Welfare Reform Act 2012 removes entitlement to ESA(CB) at the end of the 365 days and your clients ESA(CB) claim will be closed as a result. We originally thought that the ESA claim would remain open, but it does not.
They continue to have Limited Capability for Work as no Decision has been made removing this, so they are therefore entitled to receive NI Credits whilst this continues to be the case (Social Security (Credits) Act) , there is no need for them to have an active ESA claim for this to happen.
The Welfare Reform Act also enables them make a request to be re-assessed for ESA(CB) at some future date, providing that they continue to have LCW, on the basis they meet the criteria for the Support Group due to a deteriorated condition or a new condition which would place them in the Support Group.
I hope this explains it.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic 365 day rule
carmind wrote: A client of mine has had payments of her contribution-based ESA stopped under the 365 day rule and cannot claim Income-based.
However, she wishes to continue claiming contribution-based ESA so that she will receive NI credits and can access the Work Programme.
The DWP have said she cannot do this. Is that correct?
We often simplify the rules for this, but as you question is about entitlement I will be precise.
The Welfare Reform Act 2012 removes entitlement to ESA(CB) at the end of the 365 days and your clients ESA(CB) claim will be closed as a result. We originally thought that the ESA claim would remain open, but it does not.
They continue to have Limited Capability for Work as no Decision has been made removing this, so they are therefore entitled to receive NI Credits whilst this continues to be the case (Social Security (Credits) Act) , there is no need for them to have an active ESA claim for this to happen.
The Welfare Reform Act also enables them make a request to be re-assessed for ESA(CB) at some future date, providing that they continue to have LCW, on the basis they meet the criteria for the Support Group due to a deteriorated condition or a new condition which would place them in the Support Group.
I hope this explains it.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 11 years 10 months ago by Gordon.
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11 years 10 months ago - 11 years 10 months ago #106093 by
Replied by on topic 365 day rule
Hi c,
See :
"41841 A person whose entitlement to ESA(Cont) has been terminated after 365 days remains entitled to NI credits for any day which would have been a day of LCW if the ESA award had not been terminated."
&
41856 onwards of the :
DM Guide ESA Conditions of Entitlement
bro58
See :
"41841 A person whose entitlement to ESA(Cont) has been terminated after 365 days remains entitled to NI credits for any day which would have been a day of LCW if the ESA award had not been terminated."
&
41856 onwards of the :
DM Guide ESA Conditions of Entitlement
bro58
Last edit: 11 years 10 months ago by .
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- lesjo
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11 years 10 months ago - 11 years 10 months ago #106256 by lesjo
Replied by lesjo on topic 365 day rule
One question, does the 365 day rule apply to esa as it does with wrag, if you are on contribution based allowance, as I own my own home and my partner works so at the end of the year whatever happens I lose it anyway or am I mistaken?
Last edit: 11 years 10 months ago by .
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11 years 10 months ago - 11 years 10 months ago #106258 by
Hi L,
ESA is the allowance/benefit, WRAG and SG are the two groups of ESA.
Any time spent in The WRAG, (or in receipt of assessment rate) if you receive CB ESA only, counts against your 365 day entitlement.
Anytime spent in The SG, whether it be in receipt of CB ESA, IR ESA or a combination of both, does not count against your 365 day entitlement. :
12 Month Limit for ESA(CB)
bro58
Replied by on topic 365 day rule
leslie wrote: One question, does the 365 day rule apply to esa as it does with wrag, if you are on contribution based allowance, as I own my own home and my partner works so at the end of the year whatever happens I lose it anyway or am I mistaken?
Hi L,
ESA is the allowance/benefit, WRAG and SG are the two groups of ESA.
Any time spent in The WRAG, (or in receipt of assessment rate) if you receive CB ESA only, counts against your 365 day entitlement.
Anytime spent in The SG, whether it be in receipt of CB ESA, IR ESA or a combination of both, does not count against your 365 day entitlement. :
12 Month Limit for ESA(CB)
bro58
Last edit: 11 years 10 months ago by .
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