Cl getting IS. She is a carer but has been told to migrate to ESA

IS told me the reason for that was she had conditionality for another benefit.  I think she can say she doesn’t wish to migrate to ESA but continue to claim IS as a carer - is that okay?
They are a working-age couple. She was getting the DPx2 on her IS as she had incapacity for work and partner was on IB. She then got DLA LR mob and care and her partner got DLA HR mob and MR care and was migrated to CB-ESA WRAG (same amount as IB with top-up). She now gets CA in full and CP on her IS. I can’t see that she would gain anything by migrating to ESA if she doesn’t have to.

My reading of the law is as follows:

Para 7(a) and (b) to Schedule 1B of the IS Regs allowed people incapable or treated as incapable for work to be classed as prescribed persons for IS purposes.  However, those paragraphs were revoked with effect from 30 Dec 2009.  But if you were entitled to IS immediately before 30/12/09 based upon one of those paras your entitlement could continue to be based on it.

It’s not entirely clear but there doesn’t appear to be anything stopping entitlement to IS being based on more than one paragraph of Schedule 1B.  Reg 4ZA IS Regs simply requires that “any paragraph” of Sch 1B applies to a person.

Para 4(b) to Sch 1B above allows entitlement to IS on the basis of being a carer who receives CA. 

It appears your client was originally entitled to IS based upon para 7(a) or (b) above and subsequently became entitled to CA so that her IS could also be based upon para 4(b) above. 

The ESA Conversion Regs apply to those people who have existing awards.  An existing award is defined by para 11 to Schedule 4 of the Welfare Reform Act 2007 and includes an award of IS based upon para 7(a) or (b) above.

Reg 4 of the Conversion Regs allows the DWP to issue a conversion notice to any person entitled to an existing award.  So the DWP would appear to be right in your client’s case.

However, a solution would appear to be to simply stop claiming IS on the basis of incapacity.  I suspect you’d have to notify the DWP that you no longer wish to be classed as incapable of work. 

If you do this before you receive a conversion notice then the Conversion Rules do not apply to you, ie because your Income Support would no longer be an “existing award” as defined above.  No conversion decision is made.

If you have already received the conversion notice then you can rely on Reg 5(8) of the Conversion Regs which provides for the IS to cease to be subject to conversion once it’s no longer based on incapacity for work.  No conversion decision is made because the power to make a conversion decision in para (1) of Reg 5 Conversion Regs is subject to para (8) of the same reg.

The IS could continue based upon client being a carer.  And the IS could continue to contain a couple DP given that Reg 14(2A) and (2B) Conversion Regs (which removes the DP) only applies where there was a conversion decision.

However, if her partner lost MRC of DLA, she’d lose her basis for IS.  I’ve not worked out whether there are any other advantages in being converted.  Her Nic credits could be sustained by receipt of CA following the loss of credits based on incapacity for work.

Thanks so much for your detailed reply - I am confident with going ahead and helping my client change the basis on why she claims IS.  I presume she won’t have to complete a form but can notify DWP by phone?

I’d always deal with the DWP in writing.  However, looking at this again its probably safe to let the conversion process start and simply not return the ESA50.  She would then be treated as not having LCW which would result in a conversion decision that her IS had not converted to ESA.  The effect of Reg 15(2A) Conversion Regs is that her Income Support in those circumstances would continue based on her being a carer unless she told the DWP that she wanted her IS to end altogether.  Reg 15(2B) of the same Regs makes clear that in such circumstances you only lose the right to the DP based upon incapacity for work, ie a DP that’s awarded under para 12(1)(b) of Schedule 2 to the IS Regs.  She could, therefore, retain any DP that’s based upon her, or her partner’s, entitlement to DLA - that DP is awarded under para 12(1)(a) of Schedule 2 IS Regs so is not affected by the Conversion Regs.

His converted contributory ESA (including the transitional addition) will be time-limited in future if he stays in the WRAG.  It might be worth her going ahead with the ESA conversion if there’s a chance she could qualify for the support component as her applicable amount for income-related ESA would then be greater than her IS applicable amount.

Her applicable amount for IS (ie, as a carer) would be: 111.45 + 43.25 (DP) + 32.60 (CP) = 187.30

Her applicable amount for ESA-ir (if in support group) would be: 111.45 + 34.05 (Support component) + 32.60 (CP) + 21.30 (EDP) = 199.40.

edit: I’d need to check whether any transitional addition paid as part of his converted CESA counts as income for IS; it effectively counts as income for IRESA.  Anyone? (to save me checking).