... ESA regs out today !!

already got them </smug>

Where is it? I can't see it on the opsi site.

not sure, i was at a meeting with Mr's Purnell and Timms and DWP officials this morning and picked up a copy there. i should be being sent an electronic version sometime soon so will forward to Shawn/Ken and they can upload perhaps?

Introduction of employment and support allowance from October 2008: New statutory instruments

brief look.....descriptors/activities seem to be couched (as feared) "all or nothing" scenarios...ie can do or can't do...little in the way of can do sometimes/most times, or opposite...In addition the MH descriptors are quite baffling in their specificity....will be interested to see other reactions greatly

still can't be found on opsi... what's the SI number?

Just looking through - came across the phrase "Severe disorder of mood or behaviour" - (Sched 2, part 2 , page 115) - just what is that meant to mean...how does one relate it to a known mental health condition?

quote from dwp website:

Employment and Support Allowance Regulations 2008
The Employment and Support Allowance Regulations 2008 and the Employment and Support Allowance (Transitional Provisions) Regulations 2008 were laid before Parliament on 27 March 2008. They set out the entitlement conditions to Employment and Support Allowance (ESA).

ESA will replace Incapacity Benefit and Income Support paid because of incapacity or disability for new claims from 27 October 2008. Incapacity Benefit and Income Support will continue to be paid to existing customers.

The regulations will be published shortly. For an electronic copy, email john.oliver1@dwp.gsi.gov.uk

No need to send an email - regs available at http://www.rightsnet.org.uk/pdfs/ESARegsFINAL25.03.08.pdf
and
http://www.rightsnet.org.uk/pdfs/TransitionalProvisionsRegulations250308.pdf

Pete, in terms of variability/frequency/etc, we were assured that these aspects will be picked up in the guidance that will be available to the health care professionals who carry out assessments. But there was quite a level of concern from a number of organisations involved in the review process that were along the lines that you raise. However, our arguments were ultimately fruitless because we were on the consultative group rather than the technical groups, which meant that DWP ignored us basically.

Here is a clip from the DWP press release referred to in the rightsnet 'News' posting...

'...The “Support Group”: Those identified as not able to take part in any work- related activity (the most severely disabled group) will not be expected to take part in work-focused activities unless they want to, but will not face any sanctions. We are targeting more resources to the poorest in this group with a guaranteed income of £102.10 a week (£17.60 more than the long-term rate of Incapacity Benefit), while everyone else in this category will receive a minimum of £89.50 a week....'

Schedule 4 to the new regs refers to component values of £29.00 (SG) and £24.00 (WRAG). So where does the £102.10pw come from? Has the Minister added in £12.60 Enhanced Disability Premium (EDP), onto a single persons £60.50 (basic Assessment Phase) and the SG component of £29.00? Looks like it. From the press release, it would seem that EDP has been somehow converted into an income related treat? I think we should be told!

Steve

Steve

Paul_Treloar_ on the "Page 59" discussion was the first to spot that entitlement to EDP is now automatic if you qualify for the support component.

It was pointed out to me by someone at CitA that the EDP entitlement only applies to income-related ESA, which is a bit of a swizz, if I'm being kind.

Because of the equivalence of rates between income-related and contribution-based ESA, this means a lot of claimants who are entitled to the c-b ESA will lose out financially, as will any ESA claimant who is entitled under the under-20/25 y/o rules.

There is so much smoke and mirrors going on with this that it's taking some time to digest it all, but in a nutshell, our opinion at the moment is less benefit for most claimants, and less claimants because of a harder test. Also, can't see any regs relating to appeal rights.

There's going be tons of Commissioners appeals over the next few years arguing about the meaning of descriptors!

Damian, sadly i think you're probably correct. Unless the DWP/Atos can seriously pick up their game in terms of medical assessments and decision making, i can see quite a few appeals being made.

I know I must be missing something but I cannot find anything in these regs which specifies the rates for contribution based ESA. Reg 67(1) provides for Sch 4 to operate to set the rate for the income based bit.

Where is the Reg that sets the contribution based rates?

Thanks.


Martin.

hmmmm... never mind me... i just hadn't bothered to read para (2) of Reg 67.

dim dim dim.

Martin,

Doesn't Reg 67(2) do the job? It refers you on to para 1(1) of Schedule 4, thereby harmonising CBESA with basic IRESA rates.

Steve

It's just a bit further down at Reg 67(2)and 67(3)

(2) Subject to regulation 69 (special cases) the amount prescribed for the purposes of the
calculation of the amount of a claimant’s contributory allowance under section 2(1)(a) of the Act
is the amount determined in accordance with paragraph 1(1) of Schedule 4 as may apply in the
claimant’s case.
(3) Subject to regulation 69, the amount of the work-related activity component and the support
component are prescribed in Part 4 of Schedule 4.


I'm getting a bit giddy trying to find stuff too!

Keith

oops! pipped to the post by Steve!

i'm also struggling to work out what is happening wrt contributory entitlement. i'd like to get my head round what this means for what would have been new IB only claimants. the vast majority of my clients are the poorest of the poor, goes with the deprived area territory, but since the gov. has decided to balls up a quietly functioning area of the welfare system for no good reason it can tell us about honestly, i'd like to anticipate what new problems are in the pipeline.

there are plenty of people claiming IB only, about 1.5 million currently. all new claimants want is a claim form. are they going to have to go through all the means-testing questions? will the DWP give any assurances that they will not unlawfully collect data they don't need? (would i believe 'em if they did?)

CA response to the regs ..

'We welcome today's announcement of more money for some of the poorest and most disabled people on Employment Support Allowance (ESA). But we are disappointed that the new regulations have missed an opportunity to simplify the benefits system by passporting as many people onto the other benefits they are entitled to.

Under the new regulations, people who have paid NI contributions or have been disabled since childhood will have to apply separately for the enhanced disability premium, and for each of the passported benefits (such as free school meals) that they may be entitled to and other ESA claimants will receive automatically. As a result, they could be up to £60 a week worse off than those on the same benefit who don’t have a contributions record - simply because they qualify for the benefit via a different route.'

In answer to JJ's query about comparing IB to ESA, I have found the back of an envelope, and started writing on it.

Its confusing for lots of reasons, not least because of rate variations over time. All estimates below are for single people:

After 6 months, you should get £75.40 IB, rising to £84.50 after a year, in 2008/2009.

For CBESA, after 13 weeks you get a total of £84.50 CBESA if you are in the work activity group, or £89.50pw in Support Group (don't get too excited about the Support Group, the DWP says only 5 to 10 percent of ESA claimants have a chance of it, and the 46 permissible entry descriptors are indeed tough).

The best you can say, I think, is that you get the top rate of CBESA sooner than you would get top rate IB. However, you won't have to worry much about the comparison, because 'Conditionality' will mean you will be off ESA in a jiffy. Have you had a look at what they mean by 'condition management programmes' yet? (one of a number of 'work activities' you may be entitled to participate in). It includes things like the suggestion of pain killers, to address bad back problems, and so get you back to work. I am sure this will be a revelatory suggestion to people in pain.

I read somewhere that about 35% of sick people are on IB/IS etc because of mental health problems. No worries! One of the work activities being lined up is a nice drop of 'cognitive behaviour therapy'. CBT has been around in various forms since the 1960s. How could all those sick person's medical advisers have failed to spot such an obvious remedy? Bravo Conditionality!

For IRESA, you get a total £84.50 in the work activity group, plus any premiums you are entitled to, and allowed mortgage interest (but no disability premium). In Support Group you get £102.10 (this includes auto EDP), plus any other premiums and allowed mortgage costs (but again, no disability premium).

I hope I have not got too much of this wrong - blame the excitement of it all.

Steve

excellent steve, thank you. i'm going to need a nice little lie down soon... : ) isn't it funny how CBT is a work activity not a health activity now? boy, am i glad i'm not the Comptroller General! - keeping up with the labels on the Treasury jam jars must be much worse than auditing Enron. let us hope that the Work Directions employed/DWP funded CB Therapist is as enlightened as the NI fund. Will we see the DWP re-merge with the DH? What with the MOD maybe running special coroner's courts, i wouldn't be at all surprised to see the LSC gaining responsibility for gassing badgers.

"There is no spoon" -as Morpheus said to Neo. Om....

jan

Comparing the draft ESA regulations to the real ones...

I have had a brief look at this, and besides the business of Enhanced Disability Premium automatically being awarded to IRESA entitled Support Group claimants, there seem to be three changes:

1) There now seems to be a third category of pregnant women who are treated as passing the Limited Capability for Work (LCW) test (entitled to maternity allowance etc)

2) In the draft rules, those suffering from a disease/disablement and a risk to the health of another person etc, where in the list of those automatically to be treated as having LCW. They now seem to have been transferred to the 'exceptional circumstances' group (new reg 29) who I think are assisted only if they have failed the LCW test.

3) Whilst s13 of the Act authorises the creation of regulations to compel claimants to undertake work-related activity, the actual ESA regulations seem to shy away from giving decision makers the power to force activity. The WFI regulation refers to discussions about activity the claimant is ‘willing to undertake’ and the ‘action plan’ regulation uses the same phrase about making a record of such activity (new regs 57(3)(a) and 58(1)(b) respectively). Most tellingly, the sanction regulation only refers to punishment for failure to take part in WFIs and Work-Focussed Health Related Assessments.

Do you agree this is an official 'softly softly' approach? Maybe I have missed something - please say.

Steve

This is probably a stupid question and reflects that I have not looked at any of this properly yet but what happens to SSP claimants? Do they get 28 weeks of £75.40 - then 13 weeks on assessment of £60.50 and only then £84.50 etc

Yes, they will indeed experience a drop in income as you describe. We argued long and hard over this issue with DWP but they would not shift on this issue.

Hi Paul,

Could you shed any light on this intransigence? Why is ESA so 'allergic' to SSP? (especially since IB and SSP sort of dovetailed)

Steve

Steve, i wish that i could but i can't. It doesn't stack up at all in my opinion.

I'm looking through the regs today and am somewhat dismyaed to see that the disabled student definition for income-related ESA appears to only apply to someone who is in receipt of DLA.

Hi Paul,

DLA (highest care) used to side-step the PCA for IB purposes. Now ESA deletes that passport, but at the same time seems to require DLA as the only way of defining a disabled student, for the purposes of ESA.

Irony, or what!

Steve

The prohibition on any kind of ESA / SSP overlap does seem curious in policy terms.

If I have understood right, where there is no contractual sick pay, the new system would appear to create a financial incentive for some people to leave their jobs and claim ESA as soon as they become ill, rather than wait to exhaust SSP.

Over the 41 week period from the start of the illness to the end of SSP + assessment phase ESA, the cash penalty for hanging onto your job is presumably <13 x £60.50 + 28 x £84.50> - <28 x £75.40 + 13 x £60.50> ie c. £250. For the few people who would qualify for the suppport group the difference would of course be substantially more.

Paul - what was the DWP argument in favour of this?

There was any particular argument as such, simply a resistance to look at changing the process for people coming off SSP and onto ESA in such a way as to avoid the 13 week drop in income.

At best, officials pointed at the post-assessment phase rate of ESA paying a higher rate of benefit sooner than would be the case with IB (by 13 weeks). We couldn't check at the time as we didn't have the rates but even that argument is flawed by my calculations....and that's before you even get into age additions and the like.

Picking up tr's point about the better off scenario, I guess most clients won't be able to make 'informed decisions' about this, because they simply won't know they have a choice etc (unless thay happen to see an advice agency at the right time). Also, I reckon quite alot of people will balk at resigning over the possibility of £250, especially if they worry that resigning might detrimentally affect their chances of getting a job later.

I just imagine the snooty look a person might get at their Conditionality Work Focussed Interview, if they explain they resigned for the extra cash!

Steve

I trust such a decision would be taken simply to demonstrate the claimant's sharp entrepreneurial brain and befittedness for the flexible world of work!

I absolutely agree that this is unlikely to have vast impact - for most people the various benefits or remaining under a contract of employment (in many cases contractual sick pay) will greatly outweigh the disadvantage of the marginally lower income.

However, for those who find the scales more balanced, it's distinctly odd that government policy should appear to incentivise quitting your job!

I posted this befire but it seems to have got lost.

It gets worse and worse. We knew that the disability premium was to be scrapped. What we didn't properly realise is that the replacements, the work-related activity component and the support component, are paid at one standard rate - there is no couple rate at all.

Single person, incapable of work for more than 28 weeks

• IS (all claimants, although some claimants may also receive the enhanced disability premium)

£60.50 per week personal allowance
£25.85 disability premium

£86.35 per week total

• ESA (work-related activity group, estimated 90% of claimants)

£60.50 per week basic rate
£24.00 work-related activity component

£84.50 per week total (a reduction of £1.85 per week)

• ESA (support group, estimated 10% of claimants)

£60.50 per week basic rate
£29.00 support component
£12.60 enhanced disability premium

£102.10 per week total (increase of £15.75 p/w, in cases where EDP wasn’t previously payable, or increase of £3.15 p/w where EDP was payable)

Couple, incapable of work for more than 28 weeks

• IS (all claimants, although some claimants may also receive the enhanced disability premium)

£94.95 per week personal allowance
£36.85 disability premium

£131.80 per week total

• ESA (work-related activity group, estimated 90% of claimants)

£94.95 per week basic rate
£24.00 work-related activity component

£118.95 per week total (a reduction of £12.85 per week)

• ESA (support group, estimated 10% of claimants)

£94.95 per week basic rate
£29.00 support component
£18.15 enhanced disability premium

£142.10 total (increase of £10.30 p/w, in cases where EDP wasn’t previously payable, or decrease of £7.85 p/w where EDP was payable)

It gets worse and worse. We knew that the disability premium was to be scrapped. What we didn't realise is that the replacements, the work-related activity component and the support component, are paid at one standard rate.

This means that a couple claiming under the work-related activity component of ESA will be a whole £12.85 a week worse off than under current IS rates plus couple rate DP.

Hi Paul,

For your comparisons to work, am I right in thinking that the claimants must have another route to disability premium, apart from sickness (ie disability)? I am thinking this because IS (and therefore disability premium) on the grounds of sickness is being abolished.

Point taken re standard rate nature of the components.

Steve

Did any of the bodies supposedly taking an overview of the simplification of the benefits system ever comment on the ESA proposals?
although the single point of claim will do away with the IS/IB confusion at the start of a claim, ESA's interaction with other benefits seems to throw up all sorts of other complexities
- single man over 60 on ESA can still claim PC ? what about women after 2010 when retirement ages start to equalise ?
- couples -- person on ESA also on DLA mid or high care, partner claims CA so they have a 'choice' of IS or couple rate ESA depending on who claims
- will an ESA recepient get disability premium with HB/CTB after 13 weeks ?

will the DWP offer better-off calculations ?

alban

Steve, the comparisons are merely to indicate the key income differences between someone claiming IS due to incapacity at the moment, and someone claiming ESA following it's introduction. The comparisons indicate that although the government's claim to be targetting resources to the most severely disabled may be true to a degree, they are far from the whole picture in terms of how many other sick and disabled people (or the majority) will actually be financially worse off under the new system.

From what we understand, you are correct that anyone still able to claim IS following the introduction of ESA will be eligible for a Disability Premium if they qualify through receipt of DLA MRC for example. However, there won't be many people in this position I guess.

I've just had an idle glance through the regs, and was surprised to see the severe disability premium payable if 'the claimant is in receipt of the care component' - not 'the claimant is in receipt of the middle rate of the care component'.

Am I seeing things? Has everybody else already commented on this?

Yes, you are missing something unfortunately (i was so hoping you were right).

Para.6(9) of Part 2 of schedule 4 says that the "care component" means the care component of disability living allowance at the highest or middle rate.

That's what comes of looking at every other page. Never mind.

regs now out on opsi too ... includes explanatory memorandum @

http://www.opsi.gov.uk/si/si2008/em/uksiem_20080794_en.pdf

See pages 10/11/12 of the memorandum ....

... they are estimating an extra 20000 appeals - at a cost of £4m to cover processing within JCP, and £5m to cover admin costs at Ministry of Justice....

Interestingly the £5m at the Ministry of Justice is not just admin costs, but also includes 'provision of legal aid (Legal Services Commission)', perhaps this suggests a comensurate increase in the level of CLS Welfare Rights contracts? I don't think I'll hold my breath ...

Paul, whilst we all like to look on the bright side I do think you are taking things a tad too far ....increases in CLS contracts indeed ....whatever next.

On a more slightly serious note - do we think 20000 is about the right figure - it may be for straight forward wca appeals, but what about all those pain in the A*** WRA's arguing over definitions/interpretations etc?

unevolved dinosaurs banging on about, whatchyacallit, the law... you'd think they could find something else to get arsy about...

talking of contracts, A4E ad spotted in the Big Issue for volunteer mentors for the long term unemployed...

no more news on the vilely named Instant Muscle...?

Earlier in this thread I raised the apparent lack of compulsion in the regs to compel 'work related activity'. Here is a clip:

'...Whilst s13 of the Act authorises the creation of regulations to compel claimants to undertake work-related activity, the actual ESA regulations seem to shy away from giving decision makers the power to force activity. The WFI regulation refers to discussions about activity the claimant is ‘willing to undertake’ and the ‘action plan’ regulation uses the same phrase about making a record of such activity (new regs 57(3)(a) and 58(1)(b) respectively). Most tellingly, the sanction regulation only refers to punishment for failure to take part in WFIs and Work-Focussed Health Related Assessments...'

The explanatory memorandum to the same regs, that Shawn flagged up the other day, seems to explain why. Here is para 4.5:

'...The Act also provides that a person who is able to engage in work- related activity may be required to attend work-focused interviews. Further work-related activity requirements, other than attending work- focused interviews, will be introduced as and when analysis supports it and resources allows. The Department will be studying what activities are effective in helping customers return to work in Pathways to Work, to contribute to the development of policy on mandatory work-related activity...'

So the position seems to be that they don't think they will have the resources to deliver activity, nor police it, and they are waiting to see what lessons can be learned from Pathways, before compulsion sets in.

Making claimants attend WFIs etc may not end up being such a big deal for some. To me, its the eventual compulsion to take part in 'activity' which may cause far more problems, especially if the activity is not suitable etc.

But am I making a big fuss over this?

Steve

i don't think so.

compulsory work-related activity for chronically sick people, when it involves giving power to profiteers over vulnerable people can still cause political storms that hurt members of parliament. oh i'm cynical today...

it's particularly worrying, with 40% of IB claimants with mental health problems, and CBT becoming a work activity...when it is in fact a treatment, and compulsory medical treatment as a condition for receiving benefits is a bit of a step too far for much of the general public, if not New Labour... i don't have anything against the provision of CBT, which gets good results - wonder why it can be made available via Work Directions etc but not to the extent needed via the NHS? have concerns that treatment is provided by practioners employed by target and self-interest- driven employers, and have questions about confidentiality and duty of care...

compulsion with sanctions for work related activity - i can see why they might want to exercise some caution - they are doing a bit of an 'iraq' with this legislation - ignoring all the things they don't want to hear, and that worked out to be very damaging...

the crunch issue will be work-placements...enforced labour of the sick and disabled appears so...er... unfair...
and the in-work support, which is most important and costly, can probably be provided by recruited volunteers, or hey, be a low paid job for ESAs...so i doubt the contractors have too much to fear from Freud's spin about being paid by results after 3 years, like yeah...
but maybe the more mundane issue of attendance will prove most troublesome...?

however, what's to say that the 'customers' have to accept what's on offer and don't have any ideas themselves about their needs for helpful work-related activities, so maybe mobilising this group isn't a bad idea - got off to a good start at remploy...

may be of interest -
http://www.indymedia.org.uk/en/2008/03/394284.html