National Insurance / ESA

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calcotti said:

It’s sensible to apply for ESA anyway because even if DWP say that it cannot be paid due to inadequate NI record OP will still be referred for a WCA and will get NI credits which will continue if OP is found to have LCW or LCWRA. In any case I infer from what has been posted that OP has made the ESA claim.

I did not want to reply until I had checked.  I did think that if you have a penalty period of 42 days - 6 weeks that would be taken off your 52 weeks conts entitlement to leave you with 46 weeks.  Which would have meant the best advice would be to close any current claim, pay your NI contributions at £3.15 a week  and claim from 26th July after the penalty period so that you get potentially more ESA. 

However, this is not the case, even if you do have a penalty period you still get 52 weeks after the penalty period and the waiting days.  So it will be advantageous to claim from as soon as possible. 

The problem will be that there is v. likely a NI Credits only claim open right now.   And if OP wins HMRC to take payment from 14th June 2022 for the full tax years  the ESA may revise their decision and pay the current NI claim. However, I don't think they would be supposed to do that, that is to say, it would be incorrect for DWP to revise the decision and put the claim into payment.

Why? Because the rules for late payment of NI contributions mean that decisions will be revised only if the original decision would have been different after the payment of late contributions have been made. 

If a decision to disallow was made on a new claim on 12th January,  but  the NI was paid by 31st January for the RITY to become fully paid then the original decision can be changed because it would have been a different decision.  - Because the payment of contributions on or before 31st January is not a late payment and is treated as having been paid before 12th January.

If OP's decision to disallow was made on, for example, 1st June 2022 and she paid her conts on 14th June 2022  the revision should not take place because the original decision would still have been the same decision.  She would have to make a new claim from on or after 14th June 2022 to get a positive outcome.  

If it was my claim, just to be on the safe side, I would close the existing NI credits claim and I would make a new claim now, back dated 3 months.  Let them disallow it again, fight HMRC and then go back to ESA when I have got the outcome I wanted from HMRC. 

airliner

My advice to the OP would be...if you are going through a work capability assessment, continue with it.

In case it is mentioned, there's no such thing as a 'credits only ESA claim'. Your ESA claimed closed when you were told that the contribution conditions had not been met.
What can continue, following this decision, is the work capability assessment. So that you can get NI credits - crucially not part of an ESA claim. 

To protect your position. Make a new claim for NSESA and back date it from when six weeks had passed since you made your late class 2 NI payments. 

If the HMRC later attribute the class 2 NICs to your record you can ask for a revision of that second ESA claim and you will be paid from the start of that claim.