Updated March10

Tax credits introduction

Updated February 10

DLA & AA

Updated January 10

	Jobseeker's Allowance
	Social Fund
	Pension Credit
	Housing Benefit
	Incapacity Benefit
	Statutory Sick Pay
	Rights of Employees
	ESA

Updated July 09

	Introduction to Community Care
	Decision Making and Appeals

Updated June 09

	Income Support
	Tax Credits Briefing 2
	Tax credits intro
	Financing Residential Care
	Appendix 3
	Tax Credit Briefing 1
	Tax Credit Briefing 4
	Benefits in Hospital
	Tax Credit Briefing 3
	Benefits in Hospital and Respite Care

Updated May 09

Immigration & Marriage, Civil Partnership, Cohabitation

Benefits and tax credit rates from April 2009: PDF

EMPLOYMENT AND

SUPPORT ALLOWANCE

CONTENTS

INTRODUCTION

1. THE STRUCTURES OF ESA

2. BASIC CONDITIONS

3. CONTRIBUTORY ESA

4. INCOME-RELATED ESA

5. CLAIMING ESA

6. PAYMENT OF ESA

7. CHALLENGING DECISIONS

8. ESA AND OTHER BENEFITS

9. FURTHER INFORMATION

Appendix 1: Schedule 2 of the Employment and Support Allowance Regulations (NI) 2008, "Assessment of whether a claimant has limited capability for work"

Appendix 2: Schedule 3 of the Employment and Support Allowance Regulations (NI) 2008, "Assessment of whether a claimant has limited capability for work-related activity."

Primary legislation:
The Welfare Reform Act 2007: Part 1

Secondary legislation:
The Employment and Support Allowance Regulations 2008

The Employment and Support Allowance (Transitional Provisions) Regulations 2008

The Employment and Support Allowance (Consequential Provisions) Regulations 2008, SI No.1082

The Employment and Support Allowance (Consequential Provisions) (No.2) Regulations 2008, SI No. 1554

The Employment and Support Allowance (Consequential Provisions) (No. 3) Regulations 2008, SI 2008 No.1879

The Employment and Support Allowance (Miscellaneous Amendments) Regulations 2008, SI 2008 No.2428

INTRODUCTION

Employment and Support Allowance (ESA) was introduced on 27 October 2008. It replaced Incapacity Benefit and Income Support on incapacity grounds for new claims. It is no longer possible to make a claim for Incapacity Benefit or Income Support on the grounds of incapacity unless the claim for the benefit can be linked to a previous claim. A claim can be linked to a previous claim where a person:

	was entitled to Income Support, Incapacity Benefit or Severe Disablement Allowance for at least four consecutive days and the break in claim was for eight weeks or less;
	is a welfare to work beneficiary.

ESA has two components:

Contributory ESA (ESA(C))

ESA(C) replaces Incapacity Benefit.

To qualify for ESA(C), a person must satisfy the main rules of entitlement and the National Insurance Contribution (NIC) conditions or the conditions relating to youth.

ESA(C) is only payable in respect of the person who has an illness or disability. Where a person has a partner, s/he may also be entitled to Income-related ESA (ESA(IR)) as a top up to her/his income.

A person who has a current claim for Incapacity Benefit will initially continue to receive this benefit as long as s/he continues satisfy the conditions of entitlement for Incapacity Benefit.

Income-related ESA (ESA(IR))

ESA(IR) replaces Income Support for a person claiming on the grounds of incapacity for work.

It is means tested and is not based on a person’s NICs. To qualify, a person will have to satisfy the main rules of entitlement and additional rules relating specifically to ESA(IR).

An adult dependant can also be included in a claim for ESA(IR). Where a person has a partner, the total of their income and capital is taken into account when assessing the claim.

ESA is an adult only benefit. Therefore a person who has responsibility for a child(ren) or a qualifying young person(s) should make a claim for Child Tax Credit (CTC). If s/he is already in receipt of CTC, s/he should notify the change of circumstances as s/he may be entitled to an increase.

Common rules apply to both ESA(C) and ESA(IR) in terms of satisfying the conditions of having an illness or disability which prevents the person from undertaking work. There are then separate rules in relation to ESA(C) and ESA (IR).

The government has plans to move claimants on Incapacity Benefit to ESA over a three year period beginning from late 2010.

Top

1. THE STRUCTURES OF ESA

ESA has rules which are:

	basic conditions relating to both ESA(C) and ESA(IR);
	specifically related to ESA(C);
	specifically related to ESA(IR);
	related to claiming.

Top

2. BASIC CONDITIONS

To be entitled to ESA, a person must satisfy basic conditions and the conditions for either Contributory ESA or Income-related ESA.

To satisfy the basic conditions, a person must:

	have ‘limited capability for work’;
	be aged at least sixteen and under pensionable age (currently 60 for women and 65 for men);
	be in Northern Ireland;
	not be entitled to Income Support, Statutory Sick Pay or Jobseeker’s Allowance (JSA) (either alone or as part of a joint claim couple).

2.1 Limited capability for work

Limited capability for work is assessed in three different ways. The first is the assessment phase of thirteen weeks, during which time the basic rate of benefit is payable. After the assessment phase, a person will be allocated to either:

n the support group where an additional payment is made in both Income-related and Contributory ESA, for those severely ill or who have a disability and are assessed as having limited capability for work-related activity; or

n a work-related activity group where an additional payment is made in both Income-related and Contributory ESA, for those who are not assessed as having ‘limited capability for work-related activity’. It is paid in full to those complying with the requirements.

2.2 The assessment phase

This is a thirteen week period from the first day of entitlement. During the assessment phase, a person is assessed to establish whether s/he has ‘limited capability for work’ and whether s/he is entitled to the support or the work-related activity component of ESA.

The first part of the assessment phase is generally the questionnaire. This should be sent to the person about four weeks after claiming benefit. The questionnaire is called an ESA50. The completion and return of the form is extremely important. See 2.2.2 on failure to provide information in relation to limited capability for work.

Once a person has completed and returned the questionnaire, s/he is assessed to establish whether s/he has a limited capability for work. S/he is also assessed to establish whether s/he will be entitled to the support component or to the work-related activity component which are paid in addition to the basic allowance when the assessment phase has ended.

Where there is evidence that the person can be included in the support group (ie is entitled to the support component) without being called for a medical, a decision is made without any further assessment. This happens in relatively few cases. Most people are called for a work capability assessment which is explained in detail below in section 2.2.3.

The thirteen week assessment phase does not apply if:

	the person claiming is terminally ill. The support component is payable immediately without the need to wait until the end of the assessment phase;
	the ESA claim is linked to a previous ESA claim that had continued into the main phase. The additional component is payable immediately on the second claim;
	the ESA claim is linked to a previous ESA claim that had ceased before the assessment phase had ended. In this case, the assessment phase in the new claim ends when both assessment phases together equal thirteen weeks eg, the person’s first ESA claim ended after four weeks. After six weeks, a second claim for ESA is made. The assessment phase in the second claim ends after nine weeks as the first four weeks in the initial claim can be linked to the second claim.

2.2.1 Information required by the DSD

During the assessment phase, the Department for Social Development (DSD) requires the person claiming to:

	submit medical evidence from a doctor;
	complete a questionnaire (the DSD can waive this requirement if it believes it has other information);
	give any additional information the DSD may request.

2.2.2 Failure to provide information in relation to limited capability for work

A person will be treated as not having limited capability for work if s/he fails without ‘good cause’ to:

	return a completed questionnaire and at least six weeks have passed since s/he was sent the first request for information and a further request was sent at least four weeks after the first request and at least two weeks have passed since the further request; or
	attend, or submit to a medical examination where s/he was given written notice of the time and place for the examination at least seven days in advance or unless s/he agreed to accept a shorter period of notice, whether in writing or otherwise.

Whether a person had good cause for failure to return a questionnaire, attend or submit to a medical, the DSD will consider:

	whether s/he was outside Northern Ireland at the relevant time;
	her/his state of health at the relevant time;
	the nature of any disability which s/he may have.

This list is not exhaustive. Other arguments can be raised, for example, problems with the post led to the person not receiving the form or the notice of the appointment.

2.2.3 Work capability assessment

During the assessment phase, the person undergoes a work capability assessment (WCA).

The results of the work capability assessment determine if s/he is entitled to ESA and, if so, whether s/he is entitled to be a member of the support group or will be a member of the work-related activity group from the beginning of week 14.

This will affect the rate of benefit and whether a person has to take part in work-focused interviews and work-focused health-related assessments.

2.2.3.1 What is a work capability assessment?

The WCA is a face to face meeting, lasting up to 75 minutes. It explores how the person’s illness or disability affects her/his ability to work and carry out day-to-day activity.

The WCA is made of three parts and the emphasis is placed on what a person can do rather than what s/he cannot do.

There are three distinct parts to a work capability assessment. These are:

	The assessment of limited capability for work. This is the basic medical, which is used by the DSD to determine if a person is entitled to ESA.
	The assessment of limited capability for work-related activity. This is a further medical, used to determine whether a person will be a member of the support group. People who are in the support group receive a higher rate of benefit and do not have to comply with conditionality requirements.
	The work-focused health-related assessment. A healthcare professional draws up a report, which is sent to the person claiming ESA and to her/his personal adviser at the Jobs and Benefits Office, setting out the support which the person needs so that s/he can retain or move into employment.

2.2.3.2 Who carries out the work capability assessment?

The assessment is carried out by specially trained healthcare professionals such as a doctor or a nurse or an occupational therapist who has been trained and approved by the DSD in the application of the statutory test.

2.2.3.3 Where is the work capability assessment carried out?

It will be carried out at a Medical Examination Centre within reasonable travelling distance of the person’s home. In exceptional circumstances, it can be carried out at a person’s home.

2.2.3.4 Who does not have to attend the work capability assessment?

Some people will not have to attend the full work capability assessment. This includes a person who is terminally ill, ie her/his death is reasonably expected within six months, and a person who can be seen from the medical evidence to fall within the support group.

People who are terminally ill will be fast-tracked to the support group of ESA and will not have to participate in work-focused health-related assessments or other work-related activity.

2.2.3.5 How is limited capability for work assessed?

A person has limited capability for work if:

(a) ‘her/his capability for work is limited by her/his physical or mental condition, and

(b) the limitation is such that it is not reasonable to require her/him to work’.

The regulations state that the limited capability for work assessment is ‘an assessment of the extent to which a person who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.’

Schedule 2 of the ESA Regulations is called ‘Assessment of whether a claimant has limited capability for work’. It resembles the personal capability assessment (PCA) for Incapacity Benefit but there are significant differences. Those dealing with ESA need to be familiar with the schedule.

The schedule is made up of a list of activities broken down into a choice of descriptors which carry different points. The scores in the descriptors are 15, 9, and 6.

To be found to have a limited capability for work, the person must score at least 15 points from either:

	physical descriptors;
	the mental health descriptors; or
	the physical and mental health descriptors.

When a person’s capability to perform any of the activities is being assessed, s/he is assessed as if s/he was wearing any prosthesis which with s/he is fitted or, as the case may be, wearing or using any aid or appliance which is normally worn or used.

The person’s incapability to perform the activity must:

	arise from a specific bodily disease or disablement or a specific mental illness or disablement; or
	be a direct result of treatment provided by a registered medical practitioner for such a disease, illness or disablement.

This should allow the side effects of medication to be taken into consideration.

Where more than one descriptor specified for an activity applies to a person, only the highest scoring descriptor for that activity is awarded to her/him.

2.2.3.6 Exempt groups

A person is treated as having limited capability for work and is exempt from the assessment of limited capability for work if s/he is:

terminally ill ie death can reasonably be expected within six months;

receiving or recovering from certain types of chemotherapy;

excluded from work due to having been given official notice that s/he has been in contact with or a carrier of an infectious disease;

pregnant and either:

is not entitled to maternity allowance or;

is in the period between the six weeks before her due date and two weeks after the actual birth and she is not entitled to maternity allowance or Statutory Maternity Pay for that period or;

there is a serious risk to her or the unborn child if she does not refrain from work;

receiving one of the following treatments:

haemodialysis for chronic renal failure;

plasmapheresis or radiotherapy;

total parenteral nutrition for growth impairment of enteric functions and receiving it for at least two days a week. This can also cover recovering from such treatment;

a hospital in-patient.

2.2.3.7 Exceptional circumstances and limited capability for work

A person found not to have limited capability for work is treated as having limited capability for work in exceptional circumstances. These are that either:

the person is suffering from a life threatening disease in relation to which:

there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

in the case of a disease that is uncontrolled, there is reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

s/he suffers from some specific disease or bodily or mental disablement and, because of this disease or disablement, there would be a substantial risk to the mental or physical health of any person if s/he were found not to have limited capability for work.

2.2.3.8 Treated as having limited capability for work until a determination is made

A person is treated as having limited capability for work pending assessment as long as s/he submits medical certificates.

However, s/he will not be treated as having limited capability for work pending assessment if s/he:

	makes a new claim within six months of a decision that s/he does not have limited capability for work; or
	is treated as not having limited capability for work because s/he failed to return the questionnaire or attend a medical examination without good cause.

In such circumstances, ESA is not paid until the person is assessed as having limited capability for work.

However, there are exceptions. A person is treated as having limited capability for work pending her/his assessment despite the finding that within the last six months s/he did not have limited capability for work if:

	s/he is suffering from a new disease or disablement; or
	her/his disease or disablement has significantly worsened; or
	s/he had failed to return the questionnaire and has now returned it;
	s/he has an outstanding appeal against a decision that s/he does not have limited capability for work.

2.3 After the assessment phase

When the assessment phase has ended, usually after thirteen weeks, a person found to have limited capability for work is assessed for either the support group or work-related activity group.

The support component is paid at a higher rate than the work-related activity component and is intended to apply to those with the most severe conditions.

2.3.1 The support group

A person will be allocated to the support group and have entitlement to the support component of ESA where:

	the assessment phase has ended; and
	s/he has ‘limited capability for work-related activity’.

2.3.1.2 Limited capability for work-related activity

The Welfare Reform Act defines a person as having limited capability for work-related activity if:

	her/his capability for work-related activity is limited by her/his physical and mental condition; and
	the limitation is such that it is not reasonable to require her/him to undertake such activity.

The system for determining limited capability for work is set out in the Employment and Support Allowance Regulations (NI) 2008.

A person will be found to have limited capability for work-related activity if one or more of the descriptors set out in Schedule 3 applies. These descriptors are statements describing the person’s ability in certain activities. The test is similar to the structure of the limited capability for work assessment. However, consideration will show that the descriptors only apply to those who have the most extreme conditions. If one descriptor in the list of activities applies to a person, s/he will be a member of the support group.

In order for a person to qualify for the descriptor, it must apply to her/him for the majority of time or on the majority of occasions on which s/he tries to do the activity.

In determining whether a descriptor applies, a person is treated as if wearing any prosthesis with which s/he is fitted or as wearing or using any aid or appliance that is normally worn or used by her/him.

2.3.1.3 Treated as having limited capability for work-related activity

The following people will be eligible for the support group:

people who are terminally ill;

people who:

are receiving certain chemotherapy treatment;

are pregnant and there is a serious risk to the woman or the unborn child if she carries out work-related activity.

2.3.1.4 Medical examination

The government has stated that it intends as far as possible to ensure that access to the support group is paper based, through medical advice and medical certificates. In such cases the person is not required to attend a medical examination. However, where it is not clear from the evidence that a person should be in the support group, s/he will be asked to attend a medical examination at which assessments for both limited capability for work and work-related activity will be carried out.

2.3.1.5 Exceptional circumstances

A person found not to have limited capability for work-related activity is treated as having limited capability for work-related activity if s/he is suffering from some disease or disablement as a result of which s/he would be a substantial risk to the mental and physical health of any person if s/he was not found to have limited capability for work-related activity.

2.3.2 Work-related activity group

Those who are not eligible for the support group will be allocated to the work-related activity group at the end of the assessment phase.

A person will be allocated to the work-related activity group and therefore would be entitled to the work-related activity component if:

	the assessment phase has ended; and
	s/he is not eligible for the support group but has been assessed as having limited capability for work.

Further, to continue to receive the full amount of the work-related activity component, a person must if required:

	take part in one or more work-focused health-related assessments; and
	take part in a series of work-focused interviews at which an action plan will be drawn up; and
	from some future date, as yet unspecified, undertake work-related activity.

Work-related activity was not made a requirement when ESA was introduced but it will become one of the conditional requirements as resources permit. Work-related activity is defined in the Welfare Reform Act (NI) 2007 as activity that makes it more likely that the person will obtain or remain in work or be able to do so.

These conditions do not apply to a person aged 60 and over and will not apply to a person who reaches the age of 60 or becomes entitled to be a member of the support group.

2.3.2.1Work-focused health-related assessment

To continue to receive the full amount of benefit, a person is required to attend a work-focused health-related assessment carried out by the healthcare professional. One assessment is completed during the assessment period. A person can be requested to attend further assessments. The assessment considers the following:

	the extent to which the person still has capability for work; and
	the extent to which her/his capability for work may be improved by taking steps in relation to her/his physical or mental condition; and
	what difficulties the person is likely to experience as a result of her/his physical or mental condition in relation to obtaining or remaining in work and how these might be managed or alleviated; and
	the person’s views on the impact of her/his physical or mental condition in relation to obtaining or remaining in work and any aspirations in relation to work in the light of that condition.

Taking part in a work-focused health-related assessment is defined as attending that assessment at the date, time and place notified, providing all information the DSD requests and participating in discussions as the DSD considers necessary. A person must receive seven days notice of the appointment unless s/he agrees to a shorter period of notice.

The work focused health-related assessment report is not sent to the ESA decision maker. A copy of is sent to the person claiming ESA along with a letter explaining what the report is and what it is intended to help with. A further copy is sent to the person’s personal adviser at the Jobs and Benefits office and is used in the work-focused interviews as a basis for the discussion.

2.3.2.2 Failure attend a work-focused health-related assessment

If a person is asked to take part in a work-focused health-related assessment and fails to do so, s/he must show good cause for that failure within five working days of the date on which the DSD notified her/him of her/his failure to attend.

The DSD must make a decision on whether the person did fail to attend and if so whether s/he has shown good cause for her/his failure. The DSD considers the following matters when deciding good cause:

	whether the person was outside Northern Ireland at the time of notification;
	the person’s state of health at the time of the work-focused health-related assessment;
	the nature of any disability which the person has;
	any other matter which the DSD considers appropriate.

2.3.2.3 Work-focused interview

A person who is in the work-related activity group is expected to participate in a series of work focused interviews with a personal adviser. The first of the interviews takes place about eight weeks after the date of claim. Guidance suggests that the person will have a further five work focused interviews at monthly intervals.

The interviews aim to get the person back into work or to keep her/him in work. The interview is informed by the work focused health-related assessment. The personal adviser discusses the type of work most suitable to the person and can refer her/him to training, employment or condition management support.

The legislation defines a work-focused interview as an interview for the purpose of any or all of the following:

	assessing the person’s prospects for remaining in or obtaining work;
	assisting and encouraging her/him to remain in or obtain work;
	identifying training, education or rehabilitation opportunities, or other activities, which may make it more likely that s/he will obtain and remain in work;
	identify care and future work opportunities, including self employment that are relevant to her/his needs and abilities.

Work-focused interviews can be deferred if they would not be of assistance or appropriate at that time.

Work-focused interviews can only be waived if they would not be of assistance because the person is likely to be starting or returning to work.

2.3.2.4 Taking part in a work-focused interview

The DSD must give a person notice of a work-focused interview. This can be carried out in the person’s home if the DSD decides that requiring her/him to attend elsewhere would cause undue convenience to or endanger her/his health.

A person is treated as having taken part in a work-focused interview if s/he attends at the correct time and place and provides the DSD with any requested relevant information. This is listed to include the person’s educational qualifications and vocational training, work history, aspirations for future work, skills that are relevant to work, work-related abilities, her/his caring or childcare responsibilities, and any paid or unpaid work that s/he is undertaking.

A person must participate in discussions as the DSD considers necessary about such matters as:

	the activities that s/he is willing to undertake that will make remaining and obtaining work more likely;
	such activities as s/he has previously undertaken;
	any progress s/he has made towards remaining and obtaining work;
	any work-focused health-related assessments that s/he has taken part in;
	the person’s opinion as to the extent to which the ability to remain in and obtain work is restricted by her/his physical or mental condition.

2.3.2.5 Action plan

When a person attends a work-focused interview, s/he is given a written action plan containing a record of the interview and any work-related activity s/he has agreed to take.

2.3.2.6 Failure to attend a work-focused interview

A person who is asked to take part in a work-focused interview but fails to do so must show good cause for that failure within five working days of the date on which the DSD notifies her/him of the failure. The DSD must decide whether the person did fail to attend and whether s/he showed good cause for her/his failure.

In deciding whether s/he did show good cause, the DSD can consider the following matters:

	the person misunderstood the requirement to take part in the work-focused interview due to learning, language or literacy difficulties or any misleading information given or sent by the DSD;
	the person had transport difficulties and no reasonable alternative was available;
	the person was attending an interview with an employer with a view to remaining in or obtaining work;
	the person was pursuing employment opportunities as a self employed earner;
	the person was attending a medical or dental appointment and it would have been unreasonable in the circumstances to rearrange the appointment;
	the person was accompanying another person for whom s/he was caring to a medical or dental appointment and it would have been unreasonable for the other person to rearrange the appointment;
	the person, dependant or another person whom s/he cares for suffered an accident, sudden illness or relapse of a physical or mental condition;
	the person was attending a funeral of a relative or close friend on the day of the work-focused interview;
	the physical and mental condition of the person made it impossible to attend at the time and place fixed for the interview;
	the established customs and practices of the religion to which the person belongs prevented attendance on that day or at that time;
	any other matter which the DSD considers appropriate.

2.3.2.7 Sanctions

Once a person has passed the limited capability for work test and receives the work-related activity component, s/he is expected to attend work-focused interviews and work-focused health assessments as requested. If s/he does not attend without good cause s/he can have sanctions applied to her/his benefit and her/his ESA will be paid at a reduced rate.

There are two rates of sanction:

	if a person fails without good cause to take part in a work-focused health-related assessment or a work-focused interview, her/his ESA is reduced by 50 per cent of the work-related activity component, currently £12.75, for the first four benefit weeks;
	after four weeks, benefit will be reduced by 100 per cent of the work-related activity component, currently £25.50.

The amount of ESA payable to a person cannot be reduced below £0.10p per week

Sanctions stop when the person does attend the work-focused health-related assessment or work-focused interview or, alternatively, when s/he becomes entitled to be a member of the support group or reaches the age of 60.

2.4 ESA and work

A person will be treated as not entitled to ESA during any week in which s/he works unless it is work that is specifically allowed. Work is counted whether or not it is done in expectation of payment. If a person is treated as not entitled to ESA, s/he is also treated as not having limited capability for work.

The Regulations list types of work which do not exclude the person from entitlement to ESA such as work as a councillor, domestic tasks done in her/his own home or the care of a relative and also ‘exempt work’.

2.4.1 Exempt work

A person can carry out the following types of work without it ending her/his entitlement to ESA:

	work done when receiving assistance as self employed (test trading);
	work as a volunteer;
	work placement authorised by the DSD before it began.

A person can carry out the following types of work without it ending her/his entitlement to ESA (and if her/his earnings are within the permitted amounts the earnings will not count as income and will not affect either Income-related or Contributory ESA):

work earning up to £20.00 per week;

work earning up to £93.00 per week which:

is part of her/his treatment programme and done under medical supervision; or

is supervised by someone from an organisation which provides or arranges work for people with disabilities;

work for less than sixteen hours a week earning up to £92.00, either:

for up to one year; or

without limit if the person is in the support group.

These rules are more generous than those which applied before the introduction of ESA. A person receiving Income Support had her/his benefit reduced by earnings over a disregard of £20.00. However, the reduction of benefit due to earnings over disregard will continue for Housing Benefit.

2.5 Linking rules

Two periods of limited capability for work will be linked together if they are covered by the linking rules set out below:

any period of limited capability for work will be linked to an earlier one where the gap is:

twelve weeks or less; or

104 weeks or less and the person falls within the definition of a ‘work or training beneficiary’; or

less than 104 weeks and:

a claim for ESA was made in respect of a period with limited capability for work which began the day after ceasing work; and

the day before ceasing work the person claiming was entitled to the disability element of Working Tax Credit; and

s/he was paid Working Tax Credit or Child Tax Credit (above the family element on that day);

less than 104 weeks and:

the claim for ESA was made in respect for period of limited capability for work which began the day after ceasing training; and

within the eight weeks before the training began the person claiming had been entitled to ESA.

A person is a ‘work or training beneficiary’ if s/he had limited capability for work for more than thirteen weeks and then began work or training within one month of the end of that period of limited capability of work.

A ‘work or training beneficiary’ is treated as having limited capability for work for the first thirteen weeks of her/his ESA claim if s/he has been found to have or was treated as having limited capability for work during her/his previous claim. Similarly, if s/he was previously in the support group, s/he is treated as having limited capability for work-related activity for the first thirteen weeks of her/his new ESA claim.

Top

3. CONTRIBUTORY ESA

A person must satisfy the basic conditions and either:

n the national insurance contributions which are set out below; or

n the condition relating to youth.

3.1 National insurance contributions

In order to qualify for ESA(C) a person must satisfy both of the following NI conditions.

First condition – a person must have paid Class 1 contributions (paid by employed earners and their employers) on earnings of 25 times the lower earnings limit, or 25 Class 2 contributions (paid by self-employed earners), or a mixture of the two, for one out of the last three complete tax years before the beginning of the relevant benefit year.

The first condition is relaxed so that sufficient contributions paid in any one year are enough if the person was:

	entitled to Carer’s Allowance in the last complete tax year before the relevant benefit year;
	working for more than two years before the first day of the period of limited capability for work and was entitled to a disability or severe disability element of Working Tax Credit during that period;
	entitled to credited contributions because s/he had been in prison or detention and a conviction was subsequently quashed.

Second condition – the person claiming must have paid or been credited with Class 1 or 2 contributions on earnings of 50 times the lower earnings limit in each of the two complete tax years before the start of the relevant benefit year.

3.2 Condition relating to youth

A person must:

	have been under 20 when the relevant period of limited capability for work began. The age limit is raised to 25 if the person was in education or training when turning 20 in specified circumstances. The age requirement does not apply if the claim can be linked to a previous youth related entitlement to Contributory ESA, which ended because of employment or training;
	have had limited capability for work for the previous 196 days. These days can fall before the sixteenth birthday. Days of entitlement to Statutory Sick Pay are treated as days of limited capability for work;
	not be in full-time education. This is defined as education of 21 hours or more a week for those aged under nineteen;
	not be a subject to immigration control;
	satisfy conditions of residence and presence in Northern Ireland. A person must be ordinarily resident and present in Northern Ireland and have been present for a period of 26 weeks out of the last year.

It is possible for a person to get ESA(C) while her/his partner receives Income Support, Income-based JSA (provided it is not a joint claim), Pension Credit or Income-related ESA. In these circumstances, the amount of ESA(C) awarded will be assessed as income.

3.3 How much

The amount of Contributory ESA is paid for the person claiming. There are no dependant additions.

3.3.1 Assessment phase

During the assessment phase, the first thirteen weeks, the amount of the ESA(C) is a basic allowance and is aged related.

Aged under 25 £50.95 per week

Aged 25 and over £64.30 per week

3.3.2 After the assessment phase

From week 14 onwards the amount is a basic allowance plus either the support component or work-related activity component. It is not age related.

Basic rate: £64.30.

Work-related activity component: £25.50. A person will therefore receive a total of £89.90 (basic £64.30 + work-related activity component £25.50).

Support component: £30.80. A person will therefore receive a total of £95.10 (basic £64.30 + support component £30.80).

Deductions are made from Contributory ESA for the following payments:

certain pension payments;

the deduction is 50 per cent of the excess weekly payment over £85.00.

councillors allowances;

in excess of £93.00 per week.

Top

4. INCOME-RELATED ESA

ESA(IR) is paid to a person who has limited capability for work and satisfies all of the basic rules. It can be paid either in its own right, where a person does not have sufficient NIC, or as a top up to ESA(C).

Where the person claiming is a member of a couple, her/his partner is included in the claim and any income or capital s/he may have affects the claim.

4.1 General rules of entitlement

To be entitled to ESA(IR), the person claiming must satisfy the basic conditions set out above and:

have no income or income which does not exceed the applicable amount. A person’s income will be compared to the applicable amount to determine the amount of benefit s/he receives;

have capital below £16,000. ESA(IR) is not payable to a person if s/he and/or partner have capital over £16,000. Personal possessions (other than those which would be considered an investment, eg an art collection) and the person's home will not normally be included as savings or capital. Any payment made to a person as the holder of a Victoria or George Cross medal will also be ignored. The surrender value of any insurance policies and certain other savings can be ignored in specific circumstances. Notional capital rules provide that a person will still be treated as possessing capital where s/he has deprived her/himself of this capital in order to secure or increase entitlement to Income Support;

not be entitled to Pension Credit;

not have a partner who is entitled to Income Support, JSA(IB), Pension Credit or ESA(IR);

not be in remunerative work. A person will not be entitled to ESA(IB) if s/he does any work in any week unless it is work that is permitted when claiming (see section 2.4);

not have a partner in remunerative work of 24 hours or more per week;

not be receiving education. A person is in education if s/he is aged under 20 and in full-time non-advanced education or s/he is on a course that is classed as full time by the educational establishment. There is an exception to this rule and a person may be able to claim ESA(IR) if s/he is entitled to Disability Living Allowance (DLA);

not be subject to immigration control. A person will be a ‘person subject to immigration control’ if s/he is not an EEA national and:

requires leave to enter or remain but does not have it;

has leave to enter or remain but on the condition that s/he does not have recourse to public funds which will include Income Support;

has leave to enter or remain and is subject to a formal undertaking;

is appealing a decision about her/his immigration status;

be habitually resident including having a right to reside. A person must be present in the United Kingdom (UK), habitually resident in the UK, Republic of Ireland, Channel Islands or Isle of Man (the Common Travel Area (CTA)) and have a right to reside. The test applies to all people claiming (but not partners or dependants) including British/Irish citizens returning from abroad to Northern Ireland.

Some groups are automatically treated as habitually resident, including:

	people who are treated as workers within specific pieces of European legislation and who are also citizens of the European Economic Area (ie Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Iceland, Luxembourg, Netherlands, Norway, Portugal, Republic of Ireland, Spain, Sweden, and UK) and their dependants;
	refugees; and
	people who have been granted new forms of leave outside of the immigration rules, known as humanitarian protection and discretionary leave.

The European Union (EU) now to includes Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Workers from these states (except Malta and Cyprus) are referred to as A8 nationals.

The habitual residence test states that no person will be treated as habitually resident unless s/he has a right to reside in the UK, Republic of Ireland, Channel Isles or Isle of Man. This may affect access to Income Support.

Most A8 nationals must register with the Home Office’s Worker’s Registration Scheme and have twelve months continuous employment except for 30 days interruption before acquiring full EU rights.

Bulgaria and Romania have also joined the EU. Workers from these states are referred to as A2 nationals. Most A2 nationals must comply with strict rules under the Home Office’s Worker’s Authorisation Scheme and have worked for twelve months in authorised work before obtaining full EU rights. There are exceptions to these rules and if a person is turned down for ESA (IR) because of the habitual residence test, contact Law Centre (NI).

The right to reside is complex and subject to constant change. See Your Rights in Northern Ireland, a Guide for Migrant Workers at www.lawcentreni.org or phone Law Centre (NI) advice line.

4.2 Who can claim?

A person making a new claim for ESA(IB) can only claim for her/himself and partner. S/he cannot claim for dependent children and qualifying young people. Instead s/he must claim Child Tax Credit.

4.3 How much?

The amount of ESA(IR) payable is calculated by subtracting a person's resources (ie income) from her/his needs (ie the weekly amount the person claiming and her/his partner are considered to need, weekly, to live on).

4.3.1 Needs

In calculating a person's needs, three elements are taken into account:

	personal allowances;
	premiums (if any);
	housing costs (for owner-occupiers).

4.3.1.1 Personal allowances

Personal allowances are fixed amounts which cover basic weekly living expenses including food, fuel, clothing, laundry, etc. The amount paid depends on age and whether single, a lone parent or one of a couple. Where a person has a dependent child(ren) or a qualifying young person(s) s/he should make a claim for CTC. If the person has already claimed CTC then s/he should notify the change of circumstances.

Status	Age	Amount (£)
		Assessment Phase	Main Phase
Couple	both 18 or over	100.95	100.95
	one aged 18 or over, partner under 18 and entitled to Income Support, JSA(IB) or ESA(IR	100.95	100.95
	both under 18, both entitled to Income Support or JSA(IB)	76.90	100.95
	both under 18 and one is responsible for a child	76.90	100.95
	one aged 25 or over, partner under 18 and not entitled to Income Support or JSA(IB)	64.30	64.30
	one 18-24, partner under 18 and not entitled to Income Support or JSA(IB)	50.95	64.30
	both under 18 in any other circumstances	50.95	64.30
Lone parent	aged 18 or over	64.30	64.30
	aged under18	50.95	64.30
Single	aged 25 or over	64.30	64.30
	aged under 25	50.95	64.30

4.3.1.2 Premiums

Premiums are paid on top of personal allowances in recognition of extra expenses due to caring responsibilities, age and disability.

Carer premium

This premium is paid where the person claiming or partner:

	is in receipt of Carer’s Allowance (CA); or
	is entitled to and would be in receipt of CA but for the fact that another benefit (eg Incapacity Benefit) is in payment which overlaps with CA; or
	receives an extra statutory payment to compensate her/him for not getting CA also counts.

If a person stops getting or being treated as getting CA, or the person whom s/he is getting CA for dies, entitlement to the carer premium continues for a further eight weeks.

Amount paid

single person	£29.50
couple one of whom gets or would get CA	£29.50
couple both of whom get or would get CA	£59.00

Enhanced disability premium

This premium is paid where a person or any adult member of her/his family who is under 60 is in receipt of the highest rate care component of DLA or who qualifies for the support component of ESA.

Amount paid

single adult	£13.40
couple	£19.30

The amount paid is the same during the assessment phase and the main phase.

Severe disability premium

The circumstances in which the severe disability premium is paid are as follows:

a single person receives a qualifying benefit - DLA (highest or middle rate of the care component), Constant Attendance Allowance or Exceptionally Severe Disablement Allowance; and

no-one is getting CA for her/him; and

s/he has no non-dependants aged eighteen or over normally residing with her/him;

the person applying and partner both receive a qualifying benefit - DLA (highest or middle rate of the care component), Constant Attendance Allowance or Exceptionally Severe Disablement Allowance; or s/he gets one of these benefits and partner receives Attendance Allowance; and

only one person is claiming CA for one of them; and

they have no non-dependants aged eighteen or over normally residing with them (couple lower rate);

the person applying and partner both receive a qualifying benefit - DLA (highest or middle rate of the care component), Constant Attendance Allowance or Exceptionally Severe Disablement Allowance; or s/he gets one of these benefits and partner receives Attendance Allowance; and

no-one is getting CA for applicant or partner; and

they have no non-dependants aged eighteen or over normally residing with them (couple higher rate).

Amount paid

single person	£52.85
couple (lower rate)	£52.85
couple (higher rate)	£105.70

The rate is the same during the assessment phase and the main phase.

Note: A person claiming who receives one of the qualifying benefits and has a partner who is registered blind or is treated as blind because s/he came off the register in the last 28 weeks is treated as having no partner and therefore as a single person.

The following people do not count as non-dependants:

	anyone getting Attendance Allowance, the highest or middle rate of the care component of DLA, Constant Attendance Allowance or Exceptionally Severe Disablement Allowance for her/himself;
	anyone under eighteen (or under 20 if still in full-time education) who is treated as part of the person's household for benefit purposes;
	a person who is registered as blind, or treated as blind (the partner of a blind person is also disregarded);
	anyone engaged by a voluntary organisation or charity to care for the person applying, where a charge is made for that care. This does not apply to people engaging their own carers under direct payments legislation;
	anyone who normally lives elsewhere;
	anyone (other than a close relative) who is liable to make payments on a commercial basis to the person or her/his partner in order to live in the home;
	anyone (other than a close relative) to whom the person applying is liable to make such payments in order to remain in the home;
	anyone (other than a close relative) who jointly occupies the home and is a joint owner or is jointly liable with the applicant to make payments in respect of occupation of the home.

For any of the three categories above, a close relative can also be disregarded as a dependant where:

	the joint ownership or liability began before 11 April 1988; or
	the joint ownership or liability began on or before the date the person first lived in the house; or
	the person had the severe disability premium included in her/his Income Support before 21 October 1991.

Pensioner premium

This premium is paid where a person or her/his partner is aged 60 or over. It is paid at different amounts which depend on which component has been awarded.

Amount paid
Single
Assessment Phase	£65.70
Work-related component	£40.20
Support component	£34.85
Couple
Assessment phase	£97.50
Work-related component	£72.00
Support component	£66.65

4.3.1.3 Housing costs

Some housing costs for owner-occupiers will be taken into account in assessing the needs for ESA(IR).

The amount will be a weekly one representing mortgage interest, interest on loans for repairs or improvements, co-ownership payments, ground rent and service charges. The level of support for mortgage interest and repairs and improvements is restricted to total loans below £200,000. Any loan to adapt the home for a person with a disability is ignored when working out if total housing costs exceed this limit.

There are complex rules covering which housing costs are eligible for help. Contact Law Centre (NI) for further advice.

The rules of entitlement to housing costs changed on 5 January 2009. A person making a claim to ESA(IR) on or after this date will not receive any housing costs for the first thirteen weeks. This is known as the qualifying period. After the thirteen weeks, full housing costs will be considered in a person’s claim.

Prior to 5 January 2009, there were different rules for help with housing costs for loans taken out either before or after 2 October 1995 (see below). These had longer qualifying periods. A person waiting to receive housing costs under these rules should be automatically transferred over to the new shorter qualifying period, with payment starting immediately for a person who has been on benefit for fourteen or more weeks. The maximum level of support for mortgage interest and total loans was also restricted to loans below £100,000.

A person who took out a loan before 2 October 1995 gets 50 per cent of her/his housing costs after the first eight weeks and then at thirteen weeks will receive full housing costs.

Exceptions - Customers in a qualifying period but not in receipt of IS, JSA or ESA

Different rules apply where a person has made a claim for ESA(IR) prior to January 2009 and was not entitled to a payment as her/his income was too high. The relevant qualifying period at the date of the original claim will apply. This includes people who will not become entitled to benefit until housing costs are awarded. In this case it may be worth considering making a new claim.

Where a person is not entitled to IS or the income related element of either JSA or ESA because her/his income is too high, but s/he was in receipt of the contributory element of JSA or ESA on 4 January 2009 and still in the qualifying period, s/he will qualify for the new thirteen week qualifying period.

Old Rules - Loans taken out after 2 October 1995

Under the old rules, a person under 60 with a new loan (ie loan taken out on or after 2 October 1995) would not get housing costs for the first 39 weeks of a claim. Full housing costs would be awarded after 39 weeks. There were exceptions where the rules in relation to a loan taken out before 2 October 1995’ applied and a person with a partner aged 60 or over was entitled to full housing costs straightaway.

Old Rules - Loans taken out before 2 October 1995

Under the old rules, a person under 60 with an existing loan (ie loan taken out before 2 October 1995) would not get housing costs for the first eight weeks of a claim, and only 50 per cent for the next eighteen weeks. Full housing costs would be awarded after 26 weeks.

A person with a partner aged 60 or over receives full housing costs straightaway.

Loans for repairs and improvements

A person can get help with loans for repairs or improvements to maintain the current home, or any part of the building in which it is contained, in a habitable condition. Loans towards the cost of necessary survey work should also be included.

Help towards the interest payments on a loan will be payable for any of the following:

provision of a bath, shower, toilet, wash basin and the necessary plumbing and hot water;

repairs to heating system;

damp-proof measures (this may include repairs to a roof);

provision of ventilation and natural lighting;

provision of drainage facilities;

facilities for preparing and cooking food (but not for storing it);

home insulation;

provision of electric lighting and sockets;

storage facilities for fuel or refuse;

repairs of unsafe structural defects;

adaptations for a person with a disability;

providing separate bedrooms for children of different sexes aged ten or over who are part of the family. It can be argued that this should apply if:

one of the children is ten or over and the other will be ten in the near future; or

the children were not aged ten when the loan was taken out but are by the time a claim for Income Support is made.

If the loan is also for other repairs and improvements, housing costs will only be paid for the proportion which relates to any of the items listed above. The amount payable is calculated as for mortgages (ie waiting periods and similar interest rates apply).

Reduction in payments

The amount payable may be reduced if:

	a person moves into more expensive accommodation whilst on ESA(IR) or between a short break in periods on ESA(IR);
	a person occupies accommodation too big for her/him and family;
	the area where the accommodation is located is more expensive than other areas where suitable accommodation is available or the housing costs are higher than on other properties in the area suitable to a person’s needs;
	a person has non-dependants living in the house (ie people for whom the person is not claiming benefit). A deduction is made for each non-dependant in the home. If a non-dependent couple is residing with the person, only one non-dependant deduction will be made.

Circumstances	Weekly rate of non-dependant deductions
Aged eighteen or over, in full-time paid work (and not on Pension Credit) and gross income of:
£382.00 or more	£47.75
£306.00 - £381.99	£43.50
£231.00 - £305.99	£38.20
£178.00 - £230.99	£23.35
£120.00 - £177.99	£17.00
Less than £120	£7.40

These income levels only apply to non-dependants in full-time paid work but see below if also on PC. Full-time paid work is paid employment of sixteen hours or more a week. Gross income is gross wages (before tax and national insurance deductions) and most other income. Income which is disregarded includes DLA, Attendance Allowance and payments from the Macfarlane Trusts, the Eileen Trust, the Independent Living Funds and the Fund.

Where a non-dependant is not in full-time paid work, a weekly deduction of £7.40 will usually apply. Exceptions to this rule provide that in certain cases no deductions will be applied (see below). A weekly deduction of £7.40 will be made where a person is on Income Support or JSA(IB) and aged 25 or over.

A person will not cause a deduction to be made from housing costs if s/he is:

	aged sixteen or seventeen; or
	aged under 25 and on Income Support, JSA(IB), ESA(IR) in the assessment phase or receiving Pension Credit; or
	a close relative and a co-owner or joint tenant with the person or partner; or
	a full-time student during period of study; or
	receiving training allowance for a Youth Training Programme; or
	normally living elsewhere or in prison or hospital for more than 52 weeks.

No deduction will be made for the housing costs of non-dependants regardless of the circumstances of the non-dependants themselves where the person applying or partner is:

	blind or treated as blind for purposes of higher pensioner or disability premium; or
	getting Attendance Allowance or the care component of DLA.

Other matters

Most payments of mortgage interest are calculated using a standard rate of interest. From 5 January 2009, the standard interest rate was set at 6.08 per cent.

If the rate of interest a person pays is higher than the standard rate, then s/he will have to meet the shortfall.

A person does not have to go through a new waiting period if there is a break in claiming ESA(IR) for a short period. Where the break in claim is for twelve weeks or less, the two periods are linked and a person does not have to wait. Instead, s/he requalifies for help with housing costs immediately.

Longer linking periods apply in certain circumstances. For example, a longer period of 104 weeks applies to certain welfare to work beneficiaries and a period of 52 weeks applies if a person or partner:

	stopped getting ESA(IR) due to an increase in hours or starting work; or
	is in certain training-for-work schemes or on a New Deal option; and
	as a result is treated as being in full-time work or earnings or income are too high for benefit.

Interest on ineligible loans (eg a loan for a car or a business debt which is secured on a home) where a partner has left, or died, or cannot or will not pay, will not be covered by ESA(IR). A person who was receiving help with these costs prior to 2 October 1995 may still continue to receive it under transitional protection rules if s/he satisfies conditions.

Help with accumulated arrears of interest is not provided.

Transitional protection has been introduced to cover certain groups of people with existing claims who would otherwise be worse off as a result of these changes. For the vast majority, mortgage interest payments will be paid direct to the building society, or other lender, rather than to the person.

Mortgage interest run-on

A person will continue to receive the housing costs element of ESA(IR) for a period of four weeks where:

	s/he or partner has been entitled to ESA(IR) for a continuous period of 26 weeks; and
	s/he or partner takes up a full-time job or increases the hours of work to full-time (a person counts as in full-time work if s/he works sixteen hours or more per week; a partner counts as in full-time work if s/he works 24 hours or more per week); and
	that work is expected to last for more than five weeks; and
	current ESA(IR) entitlement includes housing costs; and
	s/he or partner will remain liable for the housing costs.

The amount paid will be the lowest of either:

	the amount of housing costs payable in the week before starting full-time work; or
	ESA(IR) entitlement in the week before starting full-time work.

A person should notify the local office that s/he has started full-time work. Payment should then be made automatically to the person and not the lending agency. All income and capital are ignored in calculating the amount of housing costs.

4.3.2 Resources

Resources are the income of a person from all sources and include part-time earnings, most other benefits and maintenance payments.

However, Attendance Allowance, DLA (any component) Constant Attendance Allowance, Social Fund payments, Exceptionally Severe Disablement Allowance and Housing Benefit do not count as resources. Where a person is a member of a couple, her/his partner’s income is added to hers/his.

4.3.2.1 Part-time earnings

Net earnings (ie earnings after deductions of tax, National Insurance and half of any contribution paid towards a personal or occupational pension) will be taken into account in full, less any amount which is to be disregarded (see 4.3.2.2).

No deductions can be made for travel, childcare or other expenses. Also, any payments made by the employer for travel costs to work or childcare expenses will be treated as earnings.

Any other work-related expenses paid by the employer are treated as wages unless they are exclusively and necessarily incurred in the performance of the duties of employment.

Payments of reasonable expenses to volunteers will be ignored provided no additional payments are being made.

4.3.2.2 Earnings disregard

The following earnings disregards apply to the person claiming while doing work s/he may do while claiming ESA(IR) (see section 2.4) and where her/his partner is not in full-time work. This should not be confused with exempt work (see section 2.4.1) where the earnings disregards are more generous.

A person will have £20 of her/his earnings disregarded where:

the person claiming is undertaking work as:

a councillor;

a member of a DLA advisory board or tribunal;

the result of an emergency to protect another person, property or livestock;

a self-employed person who is receiving assistance under the Employment and Training Act 1973.

the person’s partner is working and not in full-time work because s/he is:

child minding in her/his own home;

receiving assistance to become self-employed;

an auxiliary coastguard, part-time firefighter or life boat crew member or a member of the Territorial Army;

undertaking work as a councillor;

a carer;

earning or working a number of hours which have been reduced by 25 per cent or more due to a physical or mental disability;

involved in a trade dispute (or is within fifteen days of the end of the trade dispute;

working while in a care home or independent hospital;

in part-time employment (under 24 hours).

4.3.2.3 Other income

Other income, including other benefits, falls into one of three types. The main categories of income are set out below.

Treatment for ESA(IR) - count in full:

	WTC;
	Incapacity Benefit;
	CA;
	Industrial Injuries Benefits (except those disregarded in full, see below);
	net SSP (ie less tax, National Insurance and half of any pension contributions);
	net Statutory Maternity Pay (ie less tax, National Insurance and half of any pension contributions);
	net Statutory Adoption Pay;
	net Statutory Paternity Pay;
	Maternity Allowance;
	JSA(C);
	ESA(C);
	Bereavement Allowance, (though a bereavement payment is treated as capital);
	Retirement Pensions;
	Severe Disablement Allowance.

Treatment for ESA(IR) purposes - ignore first £10:

	War Disablement Pension;
	War Widow(er)s or Surviving Civil Partner’s Pension;
	Widowed Mother's and Widowed Parent's Allowance;
	a pension from Germany or Austria paid to victims of Nazi persecution; and
	extra statutory payments made in lieu of those payments already listed or similar payments made by another country.

Only £10 in total can be ignored. However, the £10 ignored is additional to the total disregard of any Mobility Supplement, Attendance Allowance or Constant Attendance Allowance paid as part of a War Disablement Pension.

Treatment for ESA(IR) purposes: ignore in full

	Child Benefit;
	CTC;
	DLA;
	AA;
	Housing Benefit;
	Guardian’s Allowance;
	Educational Maintenance Allowance;
	income in kind;
	Job Start Allowance;
	income frozen from abroad;
	foster fees;
	payments under the Personal Social Services (Direct Payments) NI Order 1996;
	payments under Sections 18, 35 and 36 of the Children (NI) Order 1995;
	payments from Independent Living Fund and Skipton Fund;
	Social Fund payments; and
	any extra statutory payment paid in compensation for non-payment of Income Support, JSA(IB), DLA, Attendance Allowance, Constant Attendance Allowance or Mobility Supplement.

Any child care expenses reimbursed to the person claiming in respect of her/his participation in the New Deal for Lone Parents or in an equivalent DEL approved scheme supporting its objectives are also ignored.

Charitable or other voluntary payments made regularly are ignored except where a person is involved in a trade dispute or within the first fifteen days following her/his return to work after a trade dispute.

Regular personal injury payments derived from lump sums held in trust or in an annuity or from an agreement or court order are disregarded in full, regardless of what the payment is intended for.

Other sources of income may be disregarded in part or in full. For a complete list see Child Poverty Action Group’s Welfare Benefits and Tax Credits Handbook or Schedule 9 of the Income Support (General) Regulations (NI) 1987.

Maintenance

Most maintenance counts in full. However, special rules apply to child maintenance.

A person who receives child maintenance is entitled to a weekly disregard of up to £20.

Income from capital

Income Support is not payable where a person and/or partner have capital over £16,000. The threshold above which capital will be deemed to generate income is £6,000.

The first £6,000 is ignored and an income of £1 per week will be assumed for every £250 or part of £250 in excess of £6,000.

A person who is permanently resident in residential care, nursing home or other type of residential accommodation and has capital in excess of £16,000 will not be entitled to ESA(IR). The first £10,000 of any capital is ignored and an income of £1 per week will be assumed for every £250 or part of £250 in excess of £10,000.

Notional income

A person will still be treated as possessing income which s/he has deprived her/himself of for the purpose of securing entitlement or increasing entitlement to ESA(IR).

This may include an assumption of income where work is undertaken for which a person does not receive any payment or any proper payment. In making such a decision, the Social Security Agency will consider what would be a reasonable payment and also the circumstances of the person for whom the work is undertaken.

Top

5. CLAIMING ESA

A person can make a claim for ESA over the phone or on an approved form. Phone calls are recorded and there is generally no need for a signature. People with speech or hearing difficulties can use a text phone facility. People who cannot use a phone can make a claim via a representative or interpreter or in person at most Jobs and Benefits Offices.

Only one claim is necessary for both Contributory and Income-related ESA.

The person can self-certify for the first seven days of the claim but must produce a medical certificate from her/his doctor after that date. If the claim is made over the phone, the person can self-certify over the phone. However, if the claim is made in writing, the person must self certify on an approved form.

The ESA branch assesses if the basic conditions are met and if so ESA is paid pending assessment of limited capability. A person receives an ESA questionnaire about four weeks after the date of claim and must complete and return this. ESA branch uses the information on this form to determine whether the person needs to attend a work capability assessment.

Only people with the most severe conditions are exempt from the work capability assessment. Those who are not exempt on the basis of the initial evidence must participate in a work capability assessment.

ESA is based at James House, Ormeau Road, Belfast. Phone claims should be made on 0800 085 6318. Staff have been mainly recruited from the Incapacity Benefits Branch.

Top

6. PAYMENT OF ESA

ESA is generally paid fortnightly in arrears.

ESA is not paid for the first three waiting days of the period of limited capability of work

Contributory ESA is taxable but Income-related ESA is not.

Top

7. CHALLENGING DECISIONS

The general rules on revision, supersession and appeals apply to ESA. The only decisions which cannot be appealed are decisions about:

	which partner should claim ESA;
	treating a claim for maternity allowance as a claim for ESA;
	the time and manner of payment of ESA.

Where a person has been found to have a limited capability for work, is treated as having limited capability for work or is found to have limited capability for work-related activity, the DSD can look at the decision again where:

	the DSD wishes to determine whether there has been a relevant change of circumstances in that person’s physical or mental condition;
	the DSD wishes to determine whether the previous decision was made in ignorance or based on a mistake as to some material fact or;
	at least three months have passed since the date on which the person was determined to have limited capability for work or to be treated as having limited capability for work.

7.1 Claiming ESA while appealing

If a person is appealing a decision that s/he does not have limited capability for work, s/he can receive ESA and is treated as having limited capability of work until the appeal is decided. The assessment phase for these people lasts until the appeal is determined (so neither additional component is paid).

Top

8. ESA AND OTHER BENEFITS

8.1 General

In general, the relationship between other benefits and either ESA(C) or ESA(IR) is similar to the relationship that exists between other benefits and Incapacity Benefit or Income Support.

The main effects of the amendments are:

	people receiving ESA(IR) are passported onto maximum Housing Benefit;
	people receiving only ESA(C) have this counted as income;
	if ESA(C) is reduced because of a sanction, the full unsanctioned amount is taken into account as income for Housing Benefit.

The Housing Benefit applicable amount includes the support or work-related activity component from the date this is included in the ESA.

	there is no disability premium within Housing Benefit for those receiving ESA (but it continues for those not receiving ESA);
	the personal allowances for Housing Benefit during the period of the assessment phase for ESA are less than for those not receiving ESA.

Top

9. FURTHER INFORMATION

Welfare Benefits and Tax Credits Handbook, 11^th Edition, CPAG, 2009/2010, ISBN 978 1 906076 35 1, £37.00.

Child Poverty Action Group Tools for advisers: Employment and Support Allowance

www.cpag.org.uk/esa/

Department for Work and Pensions, Employment and Support Allowance – latest information for advisers and healthcare professionals

www.dwp.gov.uk/esa/

All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI).

APPENDIX 1 The Employment & Support Allowance Regulations 2008

Schedule 2 - Assessment of whether a claimant has limited capability for work

PART 1 Physical disabilities

*Activity*					*Descriptors*		*Points*
1. Walking with a walking stick or other aid if such aid is normally used.			1	(a)	Cannot walk at all.		15
				(b)	Cannot walk more than 50 metres on level ground without repeatedly stopping or severe discomfort.		15
				(c)	Cannot walk up or down two steps even with the support of a handrail.		15
				(d)	Cannot walk more than 100 metres on level ground without stopping or severe discomfort.		9
				(e)	Cannot walk more than 200 metres on level ground without stopping or severe discomfort.		6
				(f)	None of the above apply.		0
2. Standing and sitting.			2	(a)	Cannot stand for more than 10 minutes, unassisted by another person, even if free to move around, before needing to sit down.		15
				(b)	Cannot sit in a chair with a high back and no arms for more than 10 minutes before needing to move from the chair because the degree of discomfort experienced makes it impossible to continue sitting.		15
				(c)	Cannot rise to standing from sitting in an upright chair without physical assistance from another person.		15
				(d)	Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person.		15
				(e)	Cannot stand for more than 30 minutes, even if free to move around, before needing to sit down.		6
				(f)	Cannot sit in a chair with a high back and no arms for more than 30 minutes without needing to move from the chair because the degree of discomfort experienced makes it impossible to continue sitting.		6
				(g)	None of the above apply.		0
3. Bending or kneeling.			3	(a)	Cannot bend to touch knees and straighten up again.		15
				(b)	Cannot bend, kneel or squat, as if to pick a light object, such as a piece of paper, situated 15 cm from the floor on a low shelf, and to move it and straighten up again without the help of another person.		9
				(c)	Cannot bend, kneel or squat, as if to pick a light object off the floor and straighten up again without the help of another person.		6
				(d)	None of the above apply.		0
4. Reaching.			4	(a)	Cannot raise either arm as if to put something in the top pocket of a coat or jacket.		15
				(b)	Cannot put either arm behind back as if to put on a coat or jacket.		15
				(c)	Cannot raise either arm to top of head as if to put on a hat.		9
				(d)	Cannot raise either arm above head height as if to reach for something.		6
				(e)	None of the above apply.		0
5. Picking up and moving or transferring by the use of the upper body and arms (excluding all other activities specified in Part 1 of this Schedule).			5	(a)	Cannot pick up and move a 0.5 litre carton full of liquid with either hand.		15
				(b)	Cannot pick up and move a one litre carton full of liquid with either hand.		9
				(c)	Cannot pick up and move a light but bulky object such as an empty cardboard box, requiring the use of both hands together.		6
				(d)	None of the above apply.		0
6. Manual dexterity.			6	(a)	Cannot turn a “star-headed” sink tap with either hand.		15
				(b)	Cannot pick up a £1 coin or equivalent with either hand.		15
				(c)	Cannot turn the pages of a book with either hand.		15
				(d)	Cannot physically use a pen or pencil.		9
				(e)	Cannot physically use a conventional keyboard or mouse.		9
				(f)	Cannot do up/undo small buttons, such as shirt or blouse buttons.		9
				(g)	Cannot turn a “star-headed” sink tap with one hand but can with the other.		6
				(h)	Cannot pick up a £1 coin or equivalent with one hand but can with the other.		6
				(i)	Cannot pour from an open 0.5 litre carton full of liquid.		6
				(j)	None of the above apply.		0
7. Speech.			7	(a)	Cannot speak at all.		15
				(b)	Speech cannot be understood by strangers.		15
				(c)	Strangers have great difficulty understanding speech.		9
				(d)	Strangers have some difficulty understanding speech.		6
				(e)	None of the above apply.		0
8. Hearing with a hearing aid or other aid if normally worn.			8	(a)	Cannot hear at all.		15
				(b)	Cannot hear well enough to be able to hear someone talking in a loud voice in a quiet room, sufficiently clearly to distinguish the words being spoken.		15
				(c)	Cannot hear someone talking in a normal voice in a quiet room, sufficiently clearly to distinguish the words being spoken.		9
				(d)	Cannot hear someone talking in a loud voice in a busy street, sufficiently clearly to distinguish the words being spoken.		6
				(e)	None of the above apply.		0
9. Vision including visual acuity and visual fields, in normal daylight or bright electric light, with glasses or other aid to vision if such aid is normally worn.			9	(a)	Cannot see at all.		15
				(b)	Cannot see well enough to read 16 point print at a distance of greater than 20cm.		15
				(c)	Has 50% or greater reduction of visual fields.		15
				(d)	Cannot see well enough to recognise a friend at a distance of a least 5 metres.		9
				(e)	Has 25% or more but less than 50% reduction of visual fields.		6
				(f)	Cannot see well enough to recognise a friend at a distance of at least 15 metres.		6
				(g)	None of the above apply.		0
10 (a) Continence other than enuresis (bed wetting) where the claimant does not have an artificial stoma or urinary collecting device.			10	(a)	(i)	Has no voluntary control over the evacuation of the bowel.	15
			10	(a)	(ii)	Has no voluntary control over the voiding of the bladder.	15
			10	(a)	(iii)	At least once a month loses control of bowels so that the claimant cannot control the full evacuation of the bowel.	15
			10	(a)	(iv)	At least once a week, loses control of bladder so that the claimant cannot control the full voiding of the bladder.	15
			10	(a)	(v)	Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel.	9
			10	(a)	(vi)	At least once a month loses control of bladder so that the claimant cannot control the full voiding of the bladder.	6
			10	(a)	(vii)	Risks losing control of bowels or bladder so that the claimant cannot control the full evacuation of the bowel or the full voiding of the bladder if not able to reach a toilet quickly.	6
			10	(a)	(viii)	None of the above apply.	0
10	(b)	Continence where the claimant uses a urinary collecting device, worn for the majority of the time including an indwelling urethral or suprapubic catheter.	10	(b)	(i)	Is unable to affix, remove or empty the catheter bag or other collecting device without receiving physical assistance from another person.	15
			10	(b)	(ii)	Is unable to affix, remove or empty the catheter bag or other collecting device without causing leakage of contents.	15
			10	(b)	(iii)	Has no voluntary control over the evacuation of the bowel.	15
			10	(b)	(iv)	At least once a month, loses control of bowels so that the claimant cannot control the full evacuation of the bowel.	15
			10	(b)	(v)	Occasionally loses control of bowels so that the claimant cannot control the full evacuation of the bowel.	9
			10	(b)	(vi)	Risks losing control of bowels so that the claimant cannot control the full evacuation of the bowel if not able to reach a toilet quickly.	6
			10	(b)	(vii)	None of the above apply.	0
10	(c)	Continence other than enuresis (bed wetting) where the claimant has an artificial stoma.	10	(c)	(i)	Is unable to affix, remove or empty stoma appliance without receiving physical assistance from another person.	15
			10	(c)	(ii)	Is unable to affix remove or empty stoma appliance without causing leakage of contents.	15
			10	(c)	(iii)	Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at least once a week, loses control of bladder so that the claimant cannot control the full voiding of the bladder.	15
			10	(c)	(iv)	Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, at last once a month, loses control of bladder so that the claimant cannot control the full voiding of the bladder.	9
			10	(c)	(v)	Where the claimant’s artificial stoma relates solely to the evacuation of the bowel, risks losing control of the bladder so that the claimant cannot control the full voiding of the bladder if not able to reach a toilet quickly.	6
			10	(c)	(vi)	None of the above apply.	0
11. Remaining conscious during waking moments.			11	(a)	At least once a week, has an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.		15
				(b)	At least once a month, has an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.		9
				(c)	At least twice in the six months immediately preceding the assessment, has had an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.		6
				(d)	None of the above apply.		0

PART 2 Mental, cognitive and intellectual function assessment

*Activity*	*Descriptors*				*Points*
12. Learning or comprehension in the completion of tasks.	12	(a)	Cannot learn or understand how to successfully complete a simple task, such as setting an alarm clock, at all.		15
12. Learning or comprehension in the completion of tasks.		(b)	Needs to witness a demonstration, given more than once on the same occasion, of how to carry out a simple task before the claimant is able to learn or understand how to complete the task successfully, but would be unable to successfully complete the task the following day without receiving a further demonstration of how to complete it.		15
		(c)	Needs to witness a demonstration of how to carry out a simple task, before the claimant is able to learn or understand how to complete the task successfully, but would be unable to successfully complete the task the following day without receiving a verbal prompt from another person.		9
		(d)	Needs to witness a demonstration of how to carry out a moderately complex task, such as the steps involved in operating a washing machine to correctly clean clothes, before the claimant is able to learn or understand how to complete the task successfully, but would be unable to successfully complete the task the following day without receiving a verbal prompt from another person.		9
		(e)	Needs verbal instructions as to how to carry out a simple task before the claimant is able to learn or understand how to complete the task successfully, but would be unable, within a period of less than one week, to successfully complete the task the following day without receiving a verbal prompt from another person.		6
		(f)	None of the above apply.		0
13. Awareness of hazard.	13	(a)	Reduced awareness of the risks of everyday hazards (such as boiling water or sharp objects) would lead to daily instances of or to near-avoidance of:		15
			(i)	injury to self or others; or
			(ii)	significant damage to property or possessions,
			to such an extent that overall day to day life cannot successfully be managed.
		(b)	Reduced awareness of the risks of everyday hazards would lead for the majority of the time to instances of or to near-avoidance of		9
			(i)	injury to self or others; or
			(ii)	significant damage to property or possessions,
			to such an extent that overall day to day life cannot successfully be managed without supervision from another person.
		(c)	Reduced awareness of the risks of everyday hazards has led or would lead to frequent instances of or to near-avoidance of:		6
			(i)	injury to self or others; or
			(ii)	significant damage to property or possessions,
			but not to such an extent that overall day to day life cannot be managed when such incidents occur.
		(d)	None of the above apply.		0
14. Memory and concentration.	14	(a)	On a daily basis, forgets or loses concentration to such an extent that overall day to day life cannot be successfully managed without receiving verbal prompting, given by someone else in the claimant’s presence.		15
		(b)	For the majority of the time, forgets or loses concentration to such an extent that overall day to day life cannot be successfully managed without receiving verbal prompting, given by someone else in the claimant’s presence.		9
		(c)	Frequently forgets or loses concentration to such an extent that overall day to day life can only be successfully managed with pre-planning, such as making a daily written list of all tasks forming part of daily life that are to be completed.		6
		(d)	None of the above apply.		0
15. Execution of tasks.	15	(a)	Is unable to successfully complete any everyday task.		15
		(b)	Takes more than twice the length of time it would take a person without any form of mental disablement, to successfully complete an everyday task with which the claimant is familiar.		15
		(c)	Takes more than one and a half times but no more than twice the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar.		9
		(d)	Takes one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which the claimant is familiar.		6
		(e)	None of the above apply.		0
16. Initiating and sustaining personal action.	16	(a)	Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks).		15
		(b)	Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring verbal prompting given by another person in the claimant’s presence for the majority of the time.		15
		(c)	Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring verbal prompting given by another person in the claimant’s presence for the majority of the time.		9
		(d)	Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain personal action without requiring frequent verbal prompting given by another person in the claimant’s presence.		6
		(e)	None of the above apply.		0
17. Coping with change.	17	(a)	Cannot cope with very minor, expected changes in routine, to the extent that overall day to day life cannot be managed.		15
		(b)	Cannot cope with expected changes in routine (such as a pre-arranged permanent change to the routine time scheduled for a lunch break), to the extent that overall day to day life is made significantly more difficult.		9
		(c)	Cannot cope with minor, unforeseen changes in routine (such as an unexpected change of the timing of an appointment on the day it is due to occur), to the extent that overall, day to day life is made significantly more difficult.		6
		(d)	None of the above apply.		0
18. Getting about.	18	(a)	Cannot get to any specified place with which the claimant is, or would be, familiar.		15
		(b)	Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person on each occasion.		15
		(c)	For the majority of the time is unable to get to a specified place with which the claimant is familiar without being accompanied by another person.		9
		(d)	Is frequently unable to get to a specified place with which the claimant is familiar without being accompanied by another person.		6
		(e)	None of the above apply.		0
19. Coping with social situations.	19	(a)	Normal activities, for example, visiting new places or engaging in social contact, are precluded because of overwhelming fear or anxiety.		15
		(b)	Normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time due to overwhelming fear or anxiety.
		(c)	Normal activities, for example, visiting new places or engaging in social contact, are frequently precluded, due to overwhelming fear or anxiety.		6
		(d)	None of the above apply.		0
20. Propriety of behaviour with other people.	20	(a)	Has unpredictable outbursts of aggressive, disinhibited, or bizarre behaviour, being either:		15
20. Propriety of behaviour with other people.			(i)	sufficient to cause disruption to others on a daily basis; or
			(ii)	of such severity that although occurring less frequently than on a daily basis, no reasonable person would be expected to tolerate them.
		(b)	Has a completely disproportionate reaction to minor events or to criticism to the extent that the claimant has an extreme violent outburst leading to threatening behaviour or actual physical violence.		15
		(c)	Has unpredictable outbursts of aggressive, disinhibited or bizarre behaviour, sufficient in severity and frequency to cause disruption for the majority of the time.