New style ESA – National Insurance contributions tests

StockportGerbil

My wife has been placed in the ESA support group. Her national insurance contribution record / working history has been patchy over recent years due to her disability.

Currently she receives national insurance credits only and we are looking if there is any way she could be eligible for ESA payments. (A task made more urgent as we are having to pay for adaptions to be made to the house for her disabilities and have failed the local authority means test. ☹ )

In the two years prior to when she was granted ESA, she worked for a continuous period of 34 weeks from December through to July. The rest of the time before and after in those two years she was subsequently awarded national insurance credits because of her disabilities.

Whilst in the two relevant years prior to applying for ESA she does now have a full national insurance contribution record, because she only worked for 17 weeks in each year that makes her ineligible for receiving any payment.

I am trying to find out if there is any discretion or latitude in the test for 26 weeks contributions and have spoken to two DWP employees.

Both employees said if she started her last job two months later or earlier she would qualify for ESA payments.

One said that in the second year it appears my wife had paid in national insurance contributions greater than 26 weeks of contributions at the lower earnings limit, so if her national insurance credits were reduced to 26 weeks she would pass the test.

The second employee said there was no scope for discretion as the law does not allow it (she referred to the law several times.) Anyway the entitlement is determined by HMRC on the basis of national insurance contribution history and DWP pay ESA on the basis of a report from HMRC.

Is what I have been told by these two DWP employees correct?

I have since tried reading the Employment and Support Allowance Regulations 2013 to see if there is any mention of discretion. I do note regulation 14 seems to states that the ‘relevant benefit year’ can be changed, but I can’t understand under what circumstances. For instance, could we ask for 2010 to be considered instead when my wife was working sufficient hours to pay full national insurance but was even then disabled?

Thanks

Kevin

calcotti

StockportGerbil said:..Whilst in the two relevant years prior to applying for ESA she does now have a full national insurance contribution record, because she only worked for 17 weeks in each year that makes her ineligible for receiving any payment.

Is this meant to say "in the two relevant years prior to applying for ESA she does not have a full national insurance contribution record"?

StockportGerbil said: Both employees said if she started her last job two months later or earlier she would qualify for ESA payments.

One said that in the second year it appears my wife had paid in national insurance contributions greater than 26 weeks of contributions at the lower earnings limit, so if her national insurance credits were reduced to 26 weeks she would pass the test.

I don't understand what is being said here.

StockportGerbil said: The second employee said there was no scope for discretion as the law does not allow it (she referred to the law several times.) 

I believe that is correct.

StockportGerbil said: I do note regulation 14 seems to states that the ‘relevant benefit year’ can be changed, but I can’t understand under what circumstances. For instance, could we ask for 2010 to be considered instead when my wife was working sufficient hours to pay full national insurance but was even then disabled?

When did she apply for ESA?
When did she work?
Has she ever been registered as self employed?
Has she ever claimed Carer's Allowance for looking after someone, if so was this prior to claiming ESA?

I don't think Regulation 14 will not allow you to consider the relevant benefit year as one that is earlier than the one in which the period of limited capability for work begins. Although she may already have been ill this period will be established by a benefit claim, not just a statement that she was ill.

StockportGerbil

Hi!

Many thanks for the reply, it is really appreciated.

The specifics of Julie (my wife)'s case are :-

-        Feb 2014 – stopped working due to disabilities.

-        December 2015 to July 2016 (inclusive) – tried again to hold down a job, forced to stop due to disabilities.

-        January 2018 – applied for ESA.

-        April 2019 – Awarded ESA / placed in support group by tribunal.

-        ? – Told not eligible for ESA payment due to incomplete national insurance contributions for Tax years 2015 and 2016.

-        ? – Awarded National Insurance credits from August 2016 onwards after complaining

-        ? – Told incomplete National Insurance contribution record on tax year 2015 meant ESA payments were not possible

-        ? – Awarded National Insurance credits from Feb 2014 to November 2015 after complaining as the evidence provided in the ESA application showed that she was eligible for ESA (which is the test for National Insurance credits.)

-        ? – Told now failed the 26 week test for ESA payments as whilst Julie had worked a continuous period 34 week period it was 17 weeks in tax year 2015 and 17 weeks in tax year 2016.

-        May and June 21 – Spoken to two different people in the DWP to try and figure out how to progress the claim / whether it is possible. Have been told two slightly different things about the 26 week test (i.e. it is determined by number of national insurance credits / total national insurance paid or number of weeks actually worked at or above the lower contributions level.) Hence the earlier question.
Also been told that should Julie have worked from October 2015 to May 2016 or February 2016 to September 2016 instead (both 34 weeks), she’d have qualified for ESA payments, but there is no scope for discretion in this respect, which seems rather arbitrary.

If it helps I can look up the dates of the correspondence above. Up until now it feels we have been dripfed reasons why Julie is not eligible for ESA.

With respect to eligibility for carers allowance our daughter was in receipt of lower rate DLA for care and medium rate for mobility from 2010 onwards. We believed the test for carers allowance is receipt of medium rate care which we were told (by the Stockport Local Advice Centre) not to apply for at the time as there was a danger her DLA would be removed all together. When she was moved from DLA to PIP in 2019 she was awarded enhanced care and her conditiion hasn't changed much since 2011, but I'm not sure whether I could argue she should have been awarded medium care DLA in 2011.

Julie has never been self employed.

Because I’ve been working throughout, Julie has never been eligible for working tax credit with or without the disability element as the household income was such that she wouldn’t have qualified.  

Any ideas at this point would be most welcome.

Thanks again

Kevin

calcotti

There must be actual contributions (not credits) equivalent to 26 weeks in one tax year only. Your wife appears to fail this test.

The advice about carer's allowance was correct. I only asked because being in receipt if Carer's Allowance prior to claiming ESA  allows relaxation of the NI rules in respect of the 26 week contribution requirement.

I asked about self employment in case she had the option to pay voluntary Class 2 contributions as a self employed person.

Even if you had been in receipt of Working Tax Credits I don't think this would have made any difference to her NI record for ESA purposes.

p00hsticks

StockportGerbil said:

 

-        Feb 2014 – stopped working due to disabilities.

-        December 2015 to July 2016 (inclusive) – tried again to hold down a job, forced to stop due to disabilities.

-        January 2018 – applied for ESA.

-        ? – Told not eligible for ESA payment due to incomplete national insurance contributions for Tax years 2015 and 2016.

To qualify for contributions based ESA she would need to have made NI contributions for at least 26 weeks in either tax year 2015-16 or 2016-17 so it sounds as if it is correct that she wouldn't qualify as she doesn't meet that condition.  

https://www.entitledto.co.uk/help/employment-and-support-allowance-contribution-based

poppy12345

StockportGerbil said:

With respect to eligibility for carers allowance our daughter was in receipt of lower rate DLA for care and medium rate for mobility from 2010 onwards. We believed the test for carers allowance is receipt of medium rate care which we were told (by the Stockport Local Advice Centre) not to apply for at the time as there was a danger her DLA would be removed all together. When she was moved from DLA to PIP in 2019 she was awarded enhanced care and her conditiion hasn't changed much since 2011, but I'm not sure whether I could argue she should have been awarded medium care DLA in 2011.

Indeed you could but it's not going to help at all. What you should have done at the time was report a change of circumstances.

calcotti

StockportGerbil said:..When she was moved from DLA to PIP in 2019 she was awarded enhanced care and her conditiion hasn't changed much since 2011, but I'm not sure whether I could argue she should have been awarded medium care DLA in 2011.

You would have needed to challenge that at the time. You cannot do it 10 years after the event.

StockportGerbil

calcotti said:

There must be actual contributions (not credits) equivalent to 26 weeks in one tax year only. Your wife appears to fail this test.

That's the question - if Julie paid the equivalent of 26 weeks national insurance contributions at the lower earnings limit (although over an actual period of 17 weeks) and was only awarded 26 weeks national insurance credits would she pass the test as suggested by one of the DWP employees? In other words should we ask for the award of 34 weeks National Insurance Credits in tax year 2016 to be downgraded to 26 weeks?

Thanks again for taking the time to reply it is appreciated.

StockportGerbil

poppy12345 said:

StockportGerbil said:

With respect to eligibility for carers allowance our daughter was in receipt of lower rate DLA for care and medium rate for mobility from 2010 onwards. We believed the test for carers allowance is receipt of medium rate care which we were told (by the Stockport Local Advice Centre) not to apply for at the time as there was a danger her DLA would be removed all together. When she was moved from DLA to PIP in 2019 she was awarded enhanced care and her conditiion hasn't changed much since 2011, but I'm not sure whether I could argue she should have been awarded medium care DLA in 2011.

Indeed you could but it's not going to help at all. What you should have done at the time was report a change of circumstances.

It wasn't a change in circumstances it was the initial assessment. The advice we (especially my daughter) received at the time was to be thankful she'd at least been awarded that and not to rock the boat. 

poppy12345

StockportGerbil said:

calcotti said:

There must be actual contributions (not credits) equivalent to 26 weeks in one tax year only. Your wife appears to fail this test.

That's the question - if Julie paid the equivalent of 26 weeks national insurance contributions at the lower earnings limit and was only awarded 26 weeks national insurance credits would she pass the test as suggested by one of the DWP employees? In other words should we ask for the award of 34 weeks National Insurance Credits in tax year 2016 to be downgraded to 26 weeks?

Thanks again for taking the time to reply it is appreciated.

As previously advised, she needs at least 26 weeks from tax years 2015 to 2017 and because she didn't then she won't be able to receive any payments. 34 weeks over 2 tax years will not qualify her.

The DLA award isn't relevant here anyway.

calcotti

StockportGerbil said:..- if Julie paid the equivalent of 26 weeks national insurance contributions at the lower earnings limit and was only awarded 26 weeks national insurance credits would she pass the test as suggested by one of the DWP employees? 

As already advised, the 26 weeks of contributions (whether actually paid or treated as paid) have to be in one tax year. From your earlier narrative this is not the case and therefore she did not pass the test. 

StockportGerbil said: In other words should we ask for the award of 34 weeks National Insurance Credits in tax year 2016 to be downgraded to 26 weeks?

I don't follow what you are saying here at all. Credits are not relevant to meeting the contributions part of the test. From your earlier native she has a total of 34 weeks of contributions in the two tax years but in neither year does she have 26, therefore she fails the contributions test.