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Can I qualify for contributions based ESA?

AOulton

Please can an expert help me?

If I were on contributions based ESA it would allow me to move in with my girlfriend, as it stands, as I am on income related (support group) I cannot afford to move in with her as I would lose it as she works full time.

It has come to my attention that since 2011, when I started on ESA, the DWP have been giving me NI credits. I did not work before this as I became disabled before I left school.

From what I can see the rules are as follows:

You qualify for contributory Employment and Support Allowance (ESA) if you have paid sufficient National Insurance contributions. There are two contribution conditions you must meet:

First contribution condition - in one of the last two complete tax years, you must have paid Class 1 or 2 contributions on relevant earnings at the lower earnings limit for at least 26 weeks. This means you must have worked for at least 26 weeks of the last two complete tax years; and
Second contribution condition - in both of the last two complete tax years, you must have paid or been credited with, Class 1 or 2 contributions to the value of 50 times the lower earnings limit.

The 2 tax years that are relevant are the ones that were completed before the benefit year in which your period of limited capability for work began.

The tax year runs 6 April - 5th April
The benefit year runs from the first Sunday in January.
The lower earnings limit for the 2014/2015 tax year was £111 per week, for 2015/2016 it was £112 per week.

I have three questions.
Firstly - Are my credits 50 times the lower earning limit, i.e enough to satisfy the 'second contribution condition'. My HMRC record says that since 2011 I have 52 weeks NI credits.

Secondly, if the answer to the above is yes - I do meet the second contribution condition then am I right in thinking that if I could find a job that paid £112 (or whatever it is for 2016/17) for 26 weeks then I would fulfil the first condition too? Would the fact that this would still be under permitted work be exclusionary? Also am I thinking, as a self employed person (I currently work 7 hours a week for £84 and think I could manage another 3) that I would have to opt in to paying class 1's for this time as I am a low earner so would otherwise be exempt? How much would those contributions be?

Thirdly, will the fact that my limited capability for work began in 2010 exclude me, unless I managed to work for a period of time (what period of time - 26 weeks or two years?) off of ESA completely?

...Ok that was more than three questions but you get my point here - is there any way, combining my NI credits from ESA and my limited capability for work that I could move on to contributions based ESA?

Thanks!

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AOulton

To add to this, whilst, my initial claim date was 4/6/2011 which I believe should have put me in to contributions based under the youth rules (although I was only moved in to the support group around 2014) I do not recall ever qualifying under the youth rules, and my current statement does not show that I have the contributions rate at 'nil' - there is nothing about contributions at all - Is this something I can challenge if this was incorrectly administered 6 years ago?

Thanks
Amy

BenefitsTrainingCo

AOulton,

Hi Amy,

So first of all, yes, the credits are enough to satisfy the second contribution condition.

Secondly, yes you'd need to actually work to meet the first contribution condition. You'd either pay Class 2 national insurance as a self-employed person (you can do this voluntarily if you don't make a high enough profit, but if you worked another 3 hours at the same rate you would earn just enough to pay it, as the threshold is £6,025), or you could try setting things up so that you are employed and pay Class 1 national insurance - if you worked ten hours at the same rate you would make just enough, because the lower earnings limit is £113 (you wouldn't actually pay contributions but you would be treated as paying them).

Thirdly, yes, you would have to be careful to finish your period of limited capability for work before you could use the tax year in which you meet the first contribution condition. That's because the relevant benefit year is usually the one in which your limited capability for work started - for you, that sounds like it was 2011. To break the link with that period of limited capability, you would need a gap of more than 12 weeks. So the idea would be to come off ESA, work, and then claim again at a point where you meet the contribution conditions and you are not in the same period of limited capability. This would have to be in the benefit year which doesn't overlap with the year in which you work - so for example, if you come off ESA & work for 26 weeks in this tax year (17/18), you'd have to wait until the benefit year 2019 to claim contributory ESA, & this would have to be the year in which your limited capability for work began.

Luckily, a period of limited capability doesn't include any period not covered by your ESA claim. So if you get NI credits only (because your ESA stops when you move in with your girlfriend), after twelve weeks you are no longer in the same period of limited capability for work.

Looking at your last question, in 2011 you would have got ESA in youth, depending on how old you were at the time, and what you were doing. When ESA in youth was abolished (in 2012), you continued to get it for one year, but if you continued to have limited capability for work and you were later put into the support group (in your case, in 2014), you could requalify for contributory ESA without satisfying the national insurance conditions. I really think this might apply to you, in which case you wouldn't have to worry about all of the above.

If a benefit decision is wrong due to an official error (including one like this where they may have got the law wrong) it can be changed at any time.

Here's a link to the decision maker's guide (the guidance to DWP use) - have a look at para 41862.

In addition to all that, if you are in fact on ESA (youth), there is a special route to requalifying for contributory ESA for people who were getting ESA in youth. That requires that your ESA ends because you go into employment. The rules are complicated & it's actually easier (arguably) to use the normal rules, but you can look at these special rules in para 41081 of the guidance. However, you wouldn't need to do this if you should, in fact, already have requalified for contributory ESA as above simply because you were originally on ESA (youth) and then later were put into the support group (that is, you wouldn't need to up your work at all, but continue with your existing permitted work).

I think you should definitely look into whether you should in fact be on contributory ESA now, and should have been treated as on it since 2014, before deciding what to do.

Will

AOulton

Thanks Will,

That's all moderately confusing but very very helpful!

Clearly my first route is to check if I should have been put on the youth rules as it appears I really should have been. I was 22 (birthday march, claim April) when I claimed, having left full time university the September before with no breaks in my education up until that point?

Do you have any advice for getting this sorted? After 6 years my claim is still held clerically so whenever I call up I get no answers whatsover and in my experience whenever I've sent post to the DWP it seems to go in to a black hole. I'm presuming it might be quite difficult to get them to overturn a wrong decision that was made 6 years ago through a criteria that ceased to exist 5 years ago? Who would make that decision?

Thank you so much for your help
Amy

AOulton

Also further to this, if I were to move on to contributions based now (if they were wrong about the youth rules) then will I lose my housing benefit that I currently get (I do not live with my girlfriend yet and don't plan to imminently).

I don't want to stir this up now and find that I'm in a worse position than I am now as I can only just afford my rent!

Is there anyone that can help me with this? I feel like I'm in a very complicated situation!

Thanks

BenefitsTrainingCo

Hi AOulton

You're certainly right this is a complicated issue to deal with and you will probably need some face to face support. I'm not sure there's much more we can advise from here but perhaps you could print off Will's advice from above and take it to a local advice service. If you're not sure where that is the Scope helpline should be able to direct you.

David

BenefitsTrainingCo

AOulton

Hi Amy,

I've had a look at the further details you've provided and I still think that yes, you were someone who met the conditions for ESA in youth back in 2011. You should have then got it for a year following its abolition, and THEN because you were put into the support group (in 2014), having had limited capability for work throughout that time, you could requalify for contributory ESA.

I also agree with David. Your contribution-based ESA wouldn't 'passport' you to housing benefit in the same way that income-related ESA does. On the other hand, depending on the level of your cont ESA and any other income you have, you might still get full housing benefit.

Of course this is something you should check first of all. It would be a bit tricky for us to do this online - ideally you want to be somewhere you can take in your benefit letters and talk to someone. So as David suggests, maybe find a local advice service. As yours is a particularly complicated case, they may need help themselves but CABx for example have their own specialist support service and other advice agencies can usually access some sort of second tier support (this means a service members of the public can't use, but advisers can if they want to check something).

If you are really stuck try using the Turn2Us benefits checker. Pretending you are on contributory ESA would give you cont ESA of £109.60. You could pop that in the checker, plus any PIP/DLA you are on, and the level of your rent - if you answer all the relevant questions, it should be able to tell you what your housing benefit would be.

I'm sorry that we can't give you more advice here because we're a virtual team. Try the Scope helpline for some signposting on where to go next. The initial decision about whether to change your award would be made by someone in the DWP called a decision maker or case manager. An advice agency can help to make sure that your revision request doesn't go into the famous DWP black hole!

Will