Employment and Support Allowance (ESA)

ESA replaces Incapacity Benefit for new claimants; and replaces Income Support on the basis of being unfit for work (only) for new claimants. A major reason why it ESA has been implemented is to force more people off of benefits, with the consequences being, many people who are not fit to work will be forced to do so or lose any existing benefits they claim for.

Please note this guide is not intended to be a complete or authoritative statement of the law and you should always seek professional guidance if you are in any doubt about your rights or responsibilities.

Who will still be able to claim Income Support?
Income support will still be available for single parents and for carers.

There are two types of ESA

  1. Contribution based ESA (= old Incapacity Benefit)
  2. Income based ESA (= old Income Support unfit for work)

Contribution based ESA can be topped up with income based ESA (which is normally higher).

A claimant needs to satisfy all the basic conditions:

  • Have a limited capability to work
  • be at least 16 years of age and under pension age
  • be in Great Britain
  • not be entitled to income support – so if you would qualify for income support as a lone parent or as a carer, then those would take precedence and you wouldn’t get ESA. That may mean in some circumstances it would be better to keep quiet about carers duties you are performing.
  • not be entitled to Jobseeker’s allowance – including even just being a member of a joint claim JSA couple

Additional contribution based ESA conditions

An ESA claim requires you to complete an EA50 form. This is like the old IB50 form, except is much bigger.

For contribution based ESA, you must also satisfy the contribution conditions:

  • Paid class 1 or class 2 for one of the last three complete tax years and;
  • Paid or been credited with class 1 or class 2 contributions in the last two complete tax years or;
  • You qualify via the relaxation in the first qualifying condition (regulation 8(2) – which especially lets carers qualify.

Additional income related ESA conditions:

  • Your income must be less than your applicable amount, which is what the law says you need to live on.
  • Your capital is not over limit of £16,000
  • You are not entitled to pension credit
  • Neither you or your partner (if you have one) are engaged in renumerative work – although ‘permitted work’ and voluntary work is allowed. Note that you can keep all permitted work income, rather than just £20 per week as in the old income support rules.
  • Not in full time education
  • Not subject to immigration control

ESA Initial Period

  • The first 13 weeks of your claim are the ‘initial period’ assessment phase.
  • Paid ESA at basic rate only (£64.30 if aged 25 or over, £50.95 if under 25, for 2009/10)
  • You must attend a work focused interview
  • You must undergo a work capability assessment
  • That assessment decides if you qualify for ESA (appealable) and if so which of the two ESA groups you fit into (also appealable).

You are exempted from the ESA initial period if you are terminally ill or your claim is linked to an earlier ESA claim.

The initial Work Focussed Interview during assessment phase is carried out by a ‘personal adviser’ – who could be DWP staff or could be contracted out to a private agency. They assess your work prospects and identify activities to assist with work – these will often be compulsory, just like in JSA, either do them (or convincingly pretend to do them) or face sanctions of benefit reductions. The WFI can be waived or deferred.

Work Capability Assessment during assessment phase is for ‘limited capability for work’, which is carried out by a ‘health care professional’, which is a registered medical practitioner (doctor), registered nurse, occupational therapist or physiotherapist. It is similar to the old personal capability assessment – but is tougher.

Changes from old personal capability assessment are:

  • fewer exemptions than in old IB50
  • no more 3 point tests
  • mental health test altered
  • 15 point threshold for each test, rather than just 10 points
  • simplified combination of points

The points system

  • You must obtain a total score of 15 points either by a single activity or through a combination of descriptors.
  • You are assessed as if wearing any prosthesis that you are fitted with, or other aids or appliances that are normally used.
  • Where more than one descriptor applies to you, only the descriptor with the highest score in respect of each activity applies.

Physical Health Test

There are now only three grades of severity; 6, 9, or 15 points. The old ’sitting’, ‘rising from sitting’, and ’standing’ activities have been merged into one. The ‘walking up and down stairs’ activity has been removed. There are three sets of descriptors for continence. The wording of the descriptors has been changed.

Mental Health Test

Replacement of four sets of activities with ten. New activities include ‘initiating and sustaining personal action’, ‘disproportionate reactions to events or criticism’, ‘ability to visit new places or engage in social contact’.

You will be automatically counted as having limited capability to work if:

  • you are pregnant and there is serious risk to your health or the health of your unborn child; or
  • you are entitled to maternity allowance and you are within your maternity allowance period; or
  • you are between the sixth week before date of confinement and the fourteenth day after the date of confinement; or
  • You are being treated as an in-patient in hospital, or recovering from such treatment; or
  • you are terminally ill; or
  • you are otherwise suffering from some severe disease, disablement or undergoing major treatment (for example, chemotherapy).

If the assessment phase rules that you do not have limited capability for work, then you would cease to receive ESA and would instead make a claim for jobseekers allowance, or income support for lone parents, or income support for carers. You can (and should) appeal that decision, within 28 days.

If instead the assessment decides that you do have limited capability for work then it will also to decide to place you into the support group (good) or the work related activity group (less good). You can also appeal that decision, again within 28 days.

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