just had a long discussion with the claims centre about the ESA transitional provisions.

Claimant used to receive income support on the grounds of incapacity for work. They failed a PCA, submitted an appeal, and are now on reduced rate IS pending the appeal.

In the meantime claimant has developed a completely new disabling condition and has obtained sick lines for this. This has happened within 8 weeks since the failed PCA decision. I think they are covered by the ESA (tran provs) regs and so can make a new claim for IB/IS in order to get back onto their previous rate of income support (which included the disability premium). The claim centre disagree. Have I got it right?

It would seem so.

Regulation 2(2)(a) of The Employment and Support Allowance (Transitional Provisions) Regulations 2008 is in the following terms.

“2.—(1) A claim for incapacity benefit, severe disablement allowance or income support on the grounds of disability, whenever made, in respect of a period which begins on or after the appointed day, is to be treated as a claim for an employment and support allowance.

(2) Paragraph (1) does not apply to—

(a) a claim for incapacity benefit or severe disablement allowance relating to a period of incapacity for work which is one of two periods treated as one period of incapacity for work under section 30C(1)(c) of the Contributions and Benefits Act (linking rules)(3);

(b) a claim made by a welfare to work beneficiary in accordance with regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995(4) (welfare to work beneficiary);

(c) a claim for income support on the grounds of disability where—

(i) the claimant was previously entitled to income support on the grounds of disability, for a period of 4 or more consecutive days, and

(ii) the claimant ceased to be entitled to income support on the grounds of disability not more than 8 weeks before the commencement of the period in respect of which the current claim is made.

(d) a claim for income support on the grounds of disability made by a claimant who is entitled to incapacity benefit or severe disablement allowance; or

(e) a claim for incapacity benefit made by a claimant who is entitled to income support on the grounds of disability.”

Section 30C(1)(c) – two periods of incapacity for work separated by no more than 8 weeks.

Thanks Nevip. They were trying to convince me the transitional provisions wouldn't apply because the previous period of incapacity ended through PCA failure.

The little tinkers!