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Thread: ESA and GROUP INCOME PROTECTION

  1. #1
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    ESA and GROUP INCOME PROTECTION

    Hi

    To cut a long story short i have been off work since 2009 with degenerative disc disease - i had an operation (plif) in 2008 but it wasnt very successful as my sciatic nerve had grown into my disc. So i have been left with permanent nerve damage in my right leg. Cant stand, sit, walk etc for any length of time and im always in continuous pain.

    My question, if someone could kindly help please

    I had ESA in 2009 along with my group income protection but it was stopped as i was advised i couldnt clain as my partner was working and it was means tested.

    By off chance i was reading about new style esa and spoke to scope about it and they said i should be claiming New style ESA as it wasnt means tested now? When was New style ESA introduced?

    Anyway ive applied online and sent my sick notes in, but within a week ive been turned down because of an occupational pension, even though i told them (2 hours on the phone) that my payment was a group income protection policy. This means im still employed and pay tax and national insurance and my payment come via my employer. Its a % of my salary. This is why scope said i could claim new style esa as it was contribution based and not means tested.

    Like i say i passed for esa with 15 points last time and my condition hasnt changed and never will.

    Please could somebody advise if i can claim new style esa along with group income protection as im so confused. Also if i can claim it, how long could i get it backdated for? I am a bit upset if i could have been claiming this benefit for ages after being told it was means tested.

    They make you feel so little as if your trying to cheat money from them. Ive now also plucked up the courage and applied for PIP really for the mobility side. Ive just been put off with the way you are treated.

    I had a great career and to lose so much money had a massive impact on our life and plans and have had no support at all. My partner also has MS but is able to work. My parents and her parents are elderly now with loads of medical conditions so we cant rely on them for help anymore.

    If anyone could advise it would be greatly appreciated.

    Regards
    Yorkies

  2. #2
    Senior Member nukecad's Avatar
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    New Style ESA is Contribution Based, so to claim it you have to have paid the required amount of NI in the previous 2 years.
    New Style ESA can be backdated up to 3 months before the date you claimed, that 3 months would need to be covered by Fit Notes.

    The NI doesn't seem to be a problem here, - but it's the 'employed' status of your Group Income Policy that may well be the problem.

    It is a bit of an unusual one.

    From what you say you are still classed as being employed, and so I believe the problem here is not about the payment itself but about how many hours work it represents.

    Whilst it's correct that New Style CB ESA is not means tested, if you are employed for more than 16 hours a week then you don't qualify for ESA. (Any ESA; Income Related or Contribution Based).

    So if your payment under the Protection Policy represents more than 16 hours worth of what your full salary would be then the DWP can/will class that as you still being employed for over 16 hours a week, so you wouldn't qualify for ESA. (means tested or not).

    Unfortunately it can't work both ways.
    Either it's employment - and over 16 hrs employment bars you from ESA,
    Or it's a private/occupational pension. - Which are deductable from New Style CB ESA and so a high enough pension may wipe out any CB ESA payable anyway.

    PS. Which group were you in on your previous ESA?
    You mention 15 points which puts you in the WRAG/LCW group.
    Unless you are assessed as Support Group/LCWRA then New Style ESA is only payable for 52 weeks.


    PIP is not affected by working or other income and so is the way for you to go, and it's good to see that you have already applied.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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    Hi

    Thanks very much for the reply its much appreciated.

    I cant remember what group i was in last time sorry. I am presuming though i should be in the support group based on my condition. But thats another matter with DWP and the assessment.

    Im really confused about the GIP as it seems scope and this post and reply (see link) also say GIP doesnt impact claiming new style esa. The post is almost word for word on my situation.

    https://www.benefitsandwork.co.uk/fo...ome-protection

    Any thoughts on this please?

    It just seems such a complicated process - surely they have had loads of cases like this? So the process should be simple.

  4. #4
    Senior Member nukecad's Avatar
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    Well I'm not the Decision Maker, and don't know how they came to their decision.

    But as I say I believe that as long as you are employed and your GIP payment represents more than 16 hours a week of what would be your normal wage then the DM is correct and you don't meet the requirements for claiming ESA.

    The reason given on their refusal letter (pension) may be the wrong one, that's known to happen especially in unusual situations where the 'standard' letters don't quite fit.
    And as I say yours is a fairly untypical situation.

    You can of course appeal against this decision if you still believe it to be wrong, in this case you would have to ask the DWP to do a Mandatory Reconsideration before you could appeal to the tribunal.

    If/when asking for an MR I'd also ask for a copy of the "LT54 Decision Makers Report" (if they did one) which should set out how they made their decision.

    You may want to get the help of an advisor local to your to do any MR/appeal, you can put your postcode in here to find local advisors:
    https://advicelocal.uk/find-an-adviser

    I have to go out, but if I get the time later I'll have a read of the 2103 ESA regs to see precisely what they say about the 16 hrs working/employment. (And if I can understand it).
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

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    Hi,

    Thanks so much for the reply, its very much appreciated and i will follow up what you have suggested.

    Is this the esa regs i need to be looking at?

    https://www.legislation.gov.uk/ukdsi...31877/contents



    Once again thanks for your help.

    Best Regards
    Yorkies

  6. #6
    Senior Member nukecad's Avatar
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    Not quite, the one you have found is the draft version from before it was made law.

    Where your link says 'Draft Legislation' on the left changes to 'Made' when it is passed into law, and then to 'Latest Available (Revised) as revisions are incorporated.

    You have to be very careful with reading legislation, not least that you are reading the latest version.

    The latest is the 1/3/2019 revision which can be found here. (Look on the left to see if its the latest version, drop down 'opening options' to see the various revisions):
    https://www.legislation.gov.uk/uksi/2013/379/contents
    You may note that there are outstanding revisions to be added, but those don't affect us here.

    Thinking further last night I realised that we can clarify your situation and make it simple to see if you qualify for ESA or not.

    The legislation about working is called "Exempt Work" in the legislation and can be found at "Part 6 Effect of work on entitlement to an Employment and Support Allowance".

    In your case Regulations 37(1), & 37(2)(f), and thus also reg. 39 apply.

    Reg 39(1)(c) is the important one for your GPI and states that in your case exempt work is:
    (c) work which is done for less than 16 hours a week, for which total earnings in any week does not exceed 16 multiplied by the National Minimum Wage, subject to paragraph (4), and which is done—

    (i)during a work period, provided that paragraph (7) applies; or

    (ii)by a claimant who has or is treated as having limited capability for work-related activity;
    In your case the bit that matters is "for which total earnings in any week does not exceed 16 multiplied by the National Minimum Wage"

    Your GIP payment is earnings, whether you are actually doing any work or not.

    So, as a start, it depends on how much you get paid by the GIP; if it's more than £140 a week (16x min. wage) then you do not qualify for ESA.

    If it's less than £140 a week then we have to look deeper into it.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

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    Quote Originally Posted by nukecad View Post
    Not quite, the one you have found is the draft version from before it was made law.

    Where your link says 'Draft Legislation' on the left changes to 'Made' when it is passed into law, and then to 'Latest Available (Revised) as revisions are incorporated.

    You have to be very careful with reading legislation, not least that you are reading the latest version.

    The latest is the 1/3/2019 revision which can be found here. (Look on the left to see if its the latest version, drop down 'opening options' to see the various revisions):
    https://www.legislation.gov.uk/uksi/2013/379/contents
    You may note that there are outstanding revisions to be added, but those don't affect us here.

    Thinking further last night I realised that we can clarify your situation and make it simple to see if you qualify for ESA or not.

    The legislation about working is called "Exempt Work" in the legislation and can be found at "Part 6 Effect of work on entitlement to an Employment and Support Allowance".

    In your case Regulations 37(1), & 37(2)(f), and thus also reg. 39 apply.

    Reg 39(1)(c) is the important one for your GPI and states that in your case exempt work is:

    In your case the bit that matters is "for which total earnings in any week does not exceed 16 multiplied by the National Minimum Wage"

    Your GIP payment is earnings, whether you are actually doing any work or not.

    So, as a start, it depends on how much you get paid by the GIP; if it's more than £140 a week (16x min. wage) then you do not qualify for ESA.

    If it's less than £140 a week then we have to look deeper into it.
    Thanks for the reply, i will have a read of the legislation.
    Best Regards

    Edit - i thought new style esa that income wasnt taken into account?

    "Why should you claim New Style Employment and Support Allowance?
    Your (or your partner’s) savings will not affect how much New Style ESA you’re paid. If your partner works, it does not affect your claim.

    Most income is not taken into account (but a personal pension can affect the amount you may receive)."
    Last edited by Yorkies; 08-10-20 at 11:33.

  8. #8
    Senior Member nukecad's Avatar
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    Quote Originally Posted by Yorkies View Post
    Edit - i thought new style esa that income wasnt taken into account?

    "Why should you claim New Style Employment and Support Allowance?
    Your (or your partner’s) savings will not affect how much New Style ESA you’re paid. If your partner works, it does not affect your claim.

    Most income is not taken into account (but a personal pension can affect the amount you may receive)."
    Income (with a few exceptions) is not taken into account, your working/being employed is taken into account.


    New Style ESA (and Old Style CB ESA) are not 'income-related' but they are 'employment-related':

    • Income is not taken into account. (Apart for income from a private pension).
    • Savings/Capital is not taken into account.
    • Your partner working is not taken into account.
    • YOU working/being employed IS taken into account.

    ESA is a benefit that is paid if YOU are unable to work (unable to be employed) for health reasons.
    If YOU are employed then ESA is not payable. (With exceptions for employment below 16 hrs and/or earning less than 16x min wage).
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

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    Quote Originally Posted by nukecad View Post
    Income (with a few exceptions) is not taken into account, your working/being employed is taken into account.


    New Style ESA (and Old Style CB ESA) are not 'income-related' but they are 'employment-related':

    • Income is not taken into account. (Apart for income from a private pension).
    • Savings/Capital is not taken into account.
    • Your partner working is not taken into account.
    • YOU working/being employed IS taken into account.

    ESA is a benefit that is paid if YOU are unable to work (unable to be employed) for health reasons.
    If YOU are employed then ESA is not payable. (With exceptions for employment below 16 hrs and/or earning less than 16x min wage).
    Ok thanks for your help, it just seems so complex when it should be straight forward. It was only when the scope advisor said i should claim new style esa as it wasnt means tested, that i became aware of the benefit.

    I think i will just continue with the PIP application.

    Thanks for all the help

    REGARDS

  10. #10
    Senior Member nukecad's Avatar
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    I think that the Scope advisor probably misunderstood that your GIP was in fact classed as ongoing employment and thought that it was an occupational pension?

    But then they would also have to be ignorant of the rules on occupational pensions above £85/week being deductable from CB benefits. Unfortunately many are ignorant of that.
    (New advisors tend to be only taught about UC these days and very little about other benefits, and so have to pick up the rules about ESA/JSA by themselves).
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

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