My client is currently entitled to IS as a single parent, but her youngest child turns 16 on 13 June. My client gets DLA and even though she is indoubtedly unfit for work she has never bothered to submit med certs because they would not have had any effect on her IS entitlement.

Can someone remind me whether my client will be able to remain on IS as someone who is incapable of work if she submits a med cert before her entitlement to IS as a lone parent ends. Or did the last bus for her claiming IS on those grounds leave on 26 October last?

My understanding is that if a lone parent is also incapable of work, their IS entitlement continues on the basis of incapacity for work even when the lone parent basis stops, and it doesn't matter whether the period of incapacity started before or after 27/10/08. This is because the ESA transitional regs only prevent a person making a new claim for IS solely on the basis of incapacity for work. In the type of case you are describing the preson is not making a new claim for IS, simply moving to a different basis. I'm sure this wasn't the DWP's policy intention but I think that is the effect of the regs. Any views, guys?

On a slightly different subject, lone parents with no child under 12 are now progressively losing their entitlement to IS unless they have a second basis.

Just refreshing this as the thread didn't take off previously and we have another related case. Client with learning disability is iro IS as carer for sister who recently died. He has never claimed SDA or IB. I he applies for IB before the end of the CA run-on, can he also stay on IS as incapable of work as this will be a change of basis for claiming IS rather than a fresh claim, instead of claiming ESA?

I've also got a case where someone's getting income support (on the grounds of being a carer) for the remainder of their CA run on after the person they cared for passed away. They are now ill themselves and have a sick line. can they claim IB to gain IS?

I also have a similar case. I plan to rely on the decision of Deputy Commissioner Poynter in R(IS) 10/05 in which he held that 'the fact that a claimant no longer falls within one of the categories prescribed by Schedule 1B to the Income Support (General) Regulations 1987 for entitlement will not usually be a ground for superseding a decision awarding income support unless, on a balance of probabilities, he or she does not fall within any other prescribed category .'

I would be very interested to see how that case would go. if you go to appeal based on that please keep us informed.

Wed 24-Jun-09 09:07 AM by Euan_Henderson

I've a similar situation where may be able to get disability premium through incapacity route.

CPAG's view is that this should be possible but that DWP may take a different view.

Has anybody actually managed to claim incapacity for someone already on IS, when incapacity claim could not be backdated to before ESA introduced.

The CPAG ESA Q&A is as follows:
Q: Does a person who is currently getting income support because they are a carer or lone parent and who then stops being a carer or lone parent but becomes incapable of work (or who was always incapable of work but not recognised as such by the DWP) have to claim ESA?

A: No. It appears that the person’s claim for income support should simply continue on the basis that they are now incapable of work. The transitional rules only prevent a new claim for income support on the grounds of incapacity being made by such a person. However, provided their period of incapacity is continuous with their period of being a lone parent or carer, then no new claim should be necessary (see R(IS)10/05) and they should simply continue to receive income support on the basis that they are now incapable of work. Such a person would have to submit medical evidence. Advisers can appeal against the stopping of income support in such a situation. Pending the appeal the claimant may wish to claim ESA – but if they win they will be switched back on to income support.

NOTE: It is not yet clear that the DWP will take the same view of these rules.