IB Credits, Income Support and ESA

Scenario: client is getting IB credits only. Lived with partner who got PC for them both. They split up. She puts in claim for IS, but decision is she doesn’t meet eligibility criteria, she must instead claim ESA. I’m thinking the DM is wrong, as both ESA transitional rules and Regulation 2(3)a of the Income Support (Prescribed Categories of Person) Regulations 2009 (I think), covers client.

Help sought: Am I missing something? Is the DM actually right?

I’m surprised you’ve not had a reply.

My thoughts are the DM is wrong and that the client is in the Prescribed Categories of person Schedule 1B.

I’ve an ESA appeal where the claimant claimed after leaving prison. Sentence was a few weeks.

Prior to imprisonment she was on IS on the basis of IFW.

Seeing as there was no redetermination of that status (i.e. found fit) they’re still incapable of work so should be IS and not ESA.

Likewise in the circumstances you have.

I’ve not seen anything that would point otherwise.

Just had a long heated debate with ESA section who are insisting that client on IB credits must now claim ESA and be paid ESA rather than IS.

We did put in an IS claim recently which was refused and has now been treated as an ESA claim, they said something about a change in the rules to stop people on IB credits only from now getting IS?

Seems dodgy to me anyone seen or heard about such a change recently?

I know there are changes coming.

I remember having a discussion a while ago about whether this came under the provision which allows a person getting IB to claim an IS top up or getting IS (for incapacity) to claim IB if they started to satisfy the contribution conditions. It seemed to depend on the interpretation of reg 2(2) of the ESA (Transitional Provisions) Regs 2008 which were amended to add that provision. The wording of the relevant sub para is “a claim for income support on the grounds of disability made by a claimant who is entitled to incapacity benefit or severe disablement allowance”. 

I suppose it’s possible their argument is that your client is not “entitled to” incapacity benefit as they get credits only. As far as I can remember we spent some time looking up various provisions round claims, entitlement and payment and thought a person should be taken as being “entitled to” IB when they have a credits only award. I’m afraid I can’t remember if it was ever pursued to a successful conclusion with IS being awarded.. It may have been via our telephone advice line and we didn’t always find out what happened as a result of our advice.

But if you can find out if that is what JC+ are arguing I think they are wrong. Also we asked DWP recently if those provisions were affected either by the recent ESA regs abolishing linking periods from 31 January, or by the IB reassessment and they said no, to both.

I’m definitely not aware of any recent change affecting credits only awards.

Thank for your help

i appealed a decision about the ib credits v ib in a case like this just out of curiosity.  done it as a paper hearing.

decision was that the express exclusion of ib credits meant that ithey werent enough to satify the transitional regs.