Incapacity Benefit Linking rules - concerned

I've emailed a question on this to JCP policy section

"An issue has come up on the benefits & work website, and I think they have spotted a flaw in the ESA conversion regs.
The regulations provide that no more claims or re-claims for IB or IS (disability) can be made after 31 Jan 2011.
Can you please clarify what will happen to people who need to make a new claim for ESA after that date, but who are still in a 104 week welfare to work linking period from their previous IB/IS claim?
I would have thought that they should be entitled for 13 weeks to be 'treated as' having limited capability (the WCA wouldn't fall to be applied until 13 weeks after a new claim anyway), but also under the terms of their linking protection they would expect to be paid immediately on re-claim at the same amount of ESA as their previous rate of IB before starting work. It can't be right to only pay them at the assessment rate of ESA if they have WTW protection.
However I can't see any mechanism in the conversion regs allowing for this to happen.
Have I missed something?"

I'll let you know when I get a reply.

on the question of carrying forward income tax exemption for pre-1995 claimants, previous Govt and DWP batted the issue back to consult with HMRC.
I've heard no more

alban

Hello
I received reply from DWP.
relevant bit from para3 onwards ...

"Thank you for your note to K-- about the application of regulations 23 and 24 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010, as amended. I have been asked to reply.

As you are aware, the provisions in question amend and revoke, respectively, regulation 2(2) of the Employment and Support Allowance (Transitional Provisions) Regulations 2008. And I can confirm your understanding of the effect of the changes, which is as follows.

Where, on or after 31 January, a customer who is not in receipt of an incapacity benefit puts in a claim to such a benefit, it will automatically fall to be treated as a new claim for ESA, even if it might otherwise have linked to a previous award of that benefit under any pre-existing linking provision in the relevant legislation, and irrespective of the period for which it is made ie even if this pre-dates 31 January.

The change will apply to all new claims - (to address your specific point, this includes claims from those customers who may still be in the 104 week welfare to work linking period from their previous award) - and will also apply to advance claims made before this date but in respect of a period on or after this date.

31 January 2011 is therefore a key date. Before this date, the existing linking rules will continue to apply, so a former incapacity benefit recipient who puts in an incapacity claim before this date (and in respect of a period before this date) which links back to a previous award will go back onto their previous incapacity benefit, and will fall to be reassessed (with a view to conversion to ESA) in the fullness of time, acquiring transitional protection, where appropriate. Whereas all claims for an incapacity benefit made on or after this date (or advance claims made before this date but in respect of a period on or after this date) will be treated as new claims to ESA (even if they would otherwise have linked back to the previous incapacity benefit award), and will therefore fall outside of the scope of the reassessment exercise, and get no transitional protection.

I hope you find this reply helpful (if disappointing)."

well, at least they were quick.

This is plainly unjustifiable, when people who re-apply by 31 Jan get protection and people in ESA linking periods continue to enjoy same protection. It would be a simple matter for Govt to pass an amendment to regulations allowing a person in an IB linking period to receive 13 weeks protection (and transitional top up) on a new claim for ESA after February 1 -- if they wanted to.

I can't see how any reasonable person would want to start the IB-ESA conversion process with such a blatant example of bad faith and broken promises.

Alban

I'm surprised that I haven't seen anyone posting about the following situation, which I reckon could be hitting thousands once the IB migration starts to hit:

if someone is found 'fit for work', has been on IB (Conts) for many years, and has a working partner (or over a certain amount of savings) then they will suddenly find that they will not be entitled to benefit because any new claim for JSA would not link (after 312 Jan 2011).

There is also the possibility that DLA claims will be looked again in the light of ESA50 forms.

In fact there's a whole lot that has been conveniently not talked about with regards to the IB migration process.

I too chose to try out work with the assurance that the 'linking Rule' would be a safety net. Unfortunately I only found out when I became unwell in Sept 2010, and had to stop work. I was told that the 'linking rules' no longer applied, and that I had to for apply for ESA. Finally, fourteen weeeks later, I receive some money with no explanation. Trepidation, as the next stage is possibly a medical. Will not query it as afraid it may be to my disadvantage. I am sorry I cannot give you more useful information but felt the need to say you are not alone. good luck!
I do believe that some of us are already being migrated. I was within the 104 week period and tried to claim IB, but was directed to ESA. By going on ESA, I have lost any chance of the protection I once had. After three months of suffering and harrassment due to inability to pay my rent and bills, I am ready to comply! ......The new strategy definately works! A law unto themselves.

Hi chills
What happened to you sounds wrong -- you should have been able to reclaim IB under the linking rules in september 2010.
As we've been discussing on this thread, the IB linking rules are due to end from 31 Jan this year, so no one will be able to make use of their protected 104 week link from February onwards, but until that date your 104 linking week promise should still hold good.

You should contact JCP and try to get some sort of explanation of their decision to make you claim ESA instead. Did you have any periods of sickness during the time you were working? You don't get statutory sick pay during your 104 week linking period, but you should get IB straight away for any period of sickness. So it is possible to 'use up' your protected 13 weeks in that way.

If that didn't happen in your case something sounds very wrong and you should appeal. Even if it's more than a month since their decision they should allow you to make a late appeal - especially as this looks like it may be an official error. Get local advice.

- further on the failure of the ESA conversion regulations to provide for an IB linking period from February, this was raised at DWP oral questions on monday 10/1

www.publications.parliament.uk/pa/cm2010...01.htm#1101109000499

Alban

Thanks RNIB!
Very informative article. I did try to
re-claim IB when I fell ill, citing the 104 week rule to no avail. Told that it no longer applied and that I had to go for ESA.
However, according to their calculations of my entitlement to ESA, the SDA (severe disability allowance ) that I had been entitled to under IB of £53.65 has been added to the normal single persons' living expenses of £65.45. A total of £119.10 per week is finally being paid. It is still much less than I would have received under the old rules. But at least they acknowledge my disability! Maybe that is how they 'link' pre-31st Jan 2011....