NS ESA, permitted work and SSP

Hi,

NS ESA claimant who is in WRAG with credits-only now (MR in place to ask for SG ongoing). Claimant was doing permitted work but has now taken sick leave due to new cancer diagnosis and qualifies for SSP which she has notified ESA of. I assumed that the receipt of SSP would end her credits-only claim but I’m very open to being wrong here. They have told her as it’s credits-only she ok to keep her claim open apparently. Would be unlikely that she’d qualify for NS ESA again on basis of time worked in relevant tax years if had to make a new claim. Anyone come across this before or disagree one way or the other with what I think/DWP have said?

Thanks.

I can see the logic.
It isn’t actually a credits only ESA claim because no such thing exists. It’s an entitled to NI credits on the basis of limited capability to work.

Given that the level of SSP is too low to attract NI credits and that somebody has to apply to HMRC to get NI credits for a period on SSP it is logical that the ‘credits only claim’ could remain open. They are receiving NI credits based on incapacity for work regardless of whether it is evidenced through receipt of SSP or a WCA outcome. The difference would be that HMRC deal with credits based on SSP whereas DWP deal with credits based on a WCA.

Above comments made without reference to any legislation - others more erudite than I will no doubt tease that out in due course (and of course the answer may have nothing to do with logic).

In respect of ability to get the ESA back into payment in the future, if the period of limited capability for work is treated as continuous I think a new ESA claim would succeed because the relevant contribution years would still be the original years (those prior to the start of the period of LCW). Obviously your client has to successfully get into the Support Group for this to be relevant.

Thank you Ianb, happy to be wrong 😊

Don’t know who’s right yet - just setting out an argument for why they may be right!

Two separate pieces of legislation here:

Your client will not be entitled to ESA if entitled to SSP because S20 of the Welfare Reform Act 2007 provides:

20 Relationship with statutory payments

(1) A person is not entitled to an employment and support allowance in respect of a day if, for the purposes of statutory sick pay, that day—
(a) is a day of incapacity for work in relation to a contract of service, and
(b) falls within a period of entitlement (whether or not it is a qualifying day).

NI credits whilst entitled to SSP or ESA are provided by Regultion 8B(1 and (2) of The Social Security (Credits) Regulations 1975 SI 1975/556 as amended

Credits for incapacity for work [or limited capability for work]

8B.(1) For the purpose of entitlement to any benefit by virtue of a persons earnings or contributions contributions, he shall be entitled to be credited with earnings equal to the lower earnings limit thenin force, in respect of each week to which this regulation applies.

(2) Subject to paragraphs(2A),] (3) and (4) this regulation applies to—
(a) a week in which, in relation to the person concerned, each of the days—
(i) was a day of incapacity for work under section 30C of the Contributions and Benefits Act (incapacity benefit: days and periods of incapacity for work); or
(ii) would have been such a day had the person concerned claimed short-term incapacity benefit or maternity allowance within the prescribed time; or
(iii) was a day of incapacity for work for the purposes of statutory sick pay under section 151 of the Contributions and Benefits Act and fell within a period of entitlement under section 153 of that Act; or
(iv) was a day of limited capability for work for the purposes of Part 1 of the Welfare Reform Act (limited capability for work) or would have been such a day had the person concerned been entitled to an employment and support allowance by virtue of section 1(2)(a) of the Welfare Reform Act; or
(iva) would have been a day of limited capability for work for the purposes of Part 1 of the Welfare Reform Act (limited capability for work) where the person concerned would have been entitled to an employment and support allowance but for the application of section 1A of that Act; or]
(v) would have been a day of limited capability for work for the purposes of Part 1 ofthe Welfare Reform Act (limited capability for work) had that person claimed an employment and support allowance or maternity allowance within the prescribed time;]