14 January 2010
130 pages of detailed information and draft regulations about how, when and in what order claimants will be migrated from incapacity benefits to employment and support allowance (ESA) have finally been published. The details include the method by which individual transfer dates will be decided and the transitional arrangements for such things as occupational pensions.
The plan for ‘conversion’ as the DWP now calls it, from incapacity benefits to employment and support allowance has been put before the Social Security Advisory Committee, which is asking for responses from individuals and organisations with an interest in the matter. Benefits and Work urges readers to make their views known before the deadline on 8th February.
Although conversion from incapacity benefits to ESA will begin with a small pilot in October 2010, full scale conversion will not commence until February 2011 and is intended to finish in March 2014, except for claimants receiving national insurance credits only.
In general, you will be begin the conversion process on the scheduled review date for your personal capability assessment. This means that most claimants will already know the date on which they should be converted to ESA. However the new regulations give the DWP the right to call anyone for transfer at any time, so there will be no legal grounds for challenging a decision to convert you earlier. The DWP state that some adjustments to conversion dates may need to be made in order to ensure a steady supply of claimants for conversion.
The guidance gives no indication of when claimants who do not have a review date, for example because they are exempt from the personal capability assessment and have not heard from the DWP in years, will be converted.
The DWP do say, though, that their intention is to migrate incapacity benefit and income support claimants first and severe disablement allowance (SDA) customers only once these have been completed.
Claimants who receive national insurance credits only will not even begin to be migrated until after March 2014.
Claimants who reach pensionable age before the end of March 2014 will not be migrated to ESA, they will stay on their current benefits. The DWP say this is to avoid people having to make two changes of benefit in a short period of time.
In total, around 1.5 million claimants will go through the migration process, excluding credits only claimants, amounting to 10,000 cases a week for three years.
The intention is that when the entire process of conversion is completed, there will be no claimants left on incapacity related benefits other than ESA, with the exception of SDA claimants who are over pensionable age.
In the initial pilot, a small number of claimants will go through what the DWP describe as a “wholly clerical” conversion process. This would appear to mean that only claimants who can be given an award of ESA without needing a medical will complete the process, because claimants cannot be found to have failed the work capability assessment (WCA) without having had the opportunity to attend a medical. The DWP claim that this initial pilot will allow them to “obtain intelligence on the customer's reactions and behaviour and enable any re-tuning of the final process”.
If you are a current incapacity benefit claimant, the first point at which you will know that you are about to be converted is when you receive a notice from the DWP informing you that you are to become subject to the work capability assessment.
If you have a very severe condition you may then be found eligible for ESA based simply on information already held by the DWP.
However, the majority of claimants will have to complete an ESA50 form and many will also have to have a medical assessment before a decision is made.
Once enough information has been collected, a decision maker will decide whether you qualify for ESA, and if so which group you will be placed in, or whether you have failed to meet the criteria set out in the WCA.
The actual date on which the change to your benefits happens, however, will not be the date of the decision but a date between two and four weeks later. The DWP call this a “safe date” or an “effective date”. They say it is so that claimants can adapt to their new circumstances and so that continuity of payment can be maintained.
Claimants who were previously getting incapacity benefit or SDA will have their benefit converted to contribution-based ESA. Claimants who are getting income support will have their benefit converted to income-related ESA.
Claimants who have been converted to ESA will be required to take part in the Pathways to Work programme in the same way as new claimants. This is in spite of the fact that the report acknowledges that Pathways currently has no effect on the number of disabled claimants moving into work.
Claimants who are getting national insurance credits only will not be required to take part in the Pmathways programme after conversion.
If you are not found to qualify for ESA you can appeal the decision in the normal way.
Whilst you are appealing you can either claim ESA at the assessment phase rate or claim JSA. These are the only circumstances under which claimants undergoing conversion will receive the assessment phase rate, ordinarily they will be placed straight into the main phase without the 13 week qualifying period for new claimants.
The DWP claim that of the 1.5 million conversion claimants who will be assessed using the work capability assessment up to March 2014, 15% will be found fit for work, 65% will be in the work-related activity group and 20% will be in the support group.
Of the 15% who fail the work capability assessment altogether the DWP estimate that 50% will move onto jobseeker's allowance, 20% will move on to another benefit such as carers allowance and 30% will move off benefit altogether.
Where claimants are entitled to more money on incapacity benefit than they would be on ESA, their ESA will be paid at their incapacity benefit rate on conversion. But their rate of ESA will effectively be frozen, rather than being increased year on year. This should mean that eventually their ESA payments and the standard rate paid to other ESA claimants will equalise. These transitional rates of payment will cease not later than April 2020, regardless of whether they have equalised or not.
Existing housing benefit and council tax benefit claimants who are receiving income support and go on to receive income-related ESA following conversion, will continue to get a full passport to housing benefit and council tax benefit.
The DWP have also said that, where claimants undergo conversion and are awarded contribution-based ESA, adjustments made by local authorities will ensure that their combined income from the housing benefit, council tax benefit and ESA will be equal to their previous combined income. This appears, however, not to apply to credits only claimants.
People claiming income support who are still receiving increases in respect of their dependent children in the form of child dependency allowances will have these payments moved to child tax credit before conversion begins.
The rules relating to occupational pensions which apply to incapacity benefit will also apply to ESA, where claimants are converted. So claimants whose occupational pension is not taken into account because their claim for IB or SDA began before April 2001, or because they receive higher rate DLA care component, will continue to have their pensions ignored for ESA purposes.
Have your say
The Social Security Advisory Committee (SSAC) has launched a consultation into the draft regulations, even though the DWP had asked for them to go through on the nod without a formal consultation. A report from SSAC will go to the Secretary of State who is not obliged to accept its recommendations, but she is obliged to publish the report and respond to its findings.
Benefits and Work considers that it is absolutely wrong for these regulations to be brought in whilst the WCA is clearly not working, the DWP is falling further and further behind with current claims and Pathways to Work is acknowledged to be entirely ineffective.
If you have concerns, either as a claimant or as an agency, please pass them on to SSAC before the 8th February deadline.
You can contact SSAC and download the transitional regulations and accompanying material.
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