Mental Health and Benefits Handbook 1st editionPart 2: Benefits Chapter 4: Employment and support allowance
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Chapter 4: Employment and support allowance
Key facts
    •Employment and support allowance (ESA) is a benefit for people whose ability to work is limited by a health condition or disability and who are not entitled to statutory sick pay.
    •There are two types of ESA: income-related ESA, which is means-tested, and contributory ESA, which is not means-tested but relies on you having made enough national insurance contributions and which can be affected by certain pension income.
    •You cannot make a new claim for income-related ESA. However, if you are already entitled to income-related ESA, you may continue to qualify until you are transferred to universal credit.
    •Eligibility for ESA is usually decided using a work capability assessment. After the assessment you might be placed in the ‘work-related activity group’ or the ‘support group’. The group you are placed in has implications for the amount of ESA you get and for whether you have any work-related requirements.
    •You can challenge decisions about your eligibility for ESA, including decisions about work capability.
    •Getting ESA can mean that you are eligible for other kinds of financial support.
1. Who can get employment and support allowance
Types of employment and support allowance
There are two types of employment and support allowance (ESA): income-related ESA, which is means-tested, and contributory ESA, which is not means-tested but relies on you having made enough national insurance contributions, and which can be affected by certain pension income. You might qualify for either or both types of ESA.
Within contributory ESA, there are two further categories. ‘Old-style’ ESA in practice covers many awards made before 12 December 2018. ‘New-style’ ESA covers any awards that come under the universal credit (UC) system, including most awards on new claims made on or after 12 December 2018.
Basic rules
To qualify for any type of ESA you must satisfy some basic conditions. These are that:1ss1 and 20(1) WRA 2007; reg 40(1) and (7) ESA Regs; reg 37(1) and (8) ESA Regs 2013
    •you are aged 16 or over and under pension age, which is currently 66. (If you are in a ‘mixed-age couple’ – ie, one of you has reached pension age, but the other has not, see here); and
    •you are in (or treated as being in) Great Britain; and
    •you have ‘limited capability for work’ (see here); and
    •you are not entitled to statutory sick pay, income support (IS) or jobseeker’s allowance (JSA); and
    •you are not doing any work (but there are some exceptions – see here).
Special rules apply while you are in hospital, living in a care home, and in certain other situations (see Chapter 16).
 
1     ss1 and 20(1) WRA 2007; reg 40(1) and (7) ESA Regs; reg 37(1) and (8) ESA Regs 2013 »
Extra rules for income-related employment and support allowance
You must satisfy extra conditions to qualify for income-related ESA. These are that:1Sch 1 para 6 WRA 2007
    •your income is not too high (see here); and
    •your savings and other capital come to £16,000 or less in total;2Reg 110 ESA Regs and
    •your partner, if you are in a couple, is not working 24 hours or more a week; and
    •your partner is not entitled to income-related ESA, income-based JSA, IS or pension credit (PC); and
    •you are not ‘receiving education’ (although there are exceptions to this – see here);3Regs 14-18 ESA Regs; Schs 1 para 2 and 2 para 2 ESA(TP)(EA)(No.2) Regs and
    •you are not a ‘person subject to immigration control’ (although there are exceptions);4s115 IAA 1999 and
    •you satisfy the ‘right to reside’ and ‘habitual residence’ tests.5Reg 70 and Sch 5 para 11 ESA Regs
The future of income-related employment and support allowance
Income-related ESA is being phased out and replaced by UC. You cannot make a new claim for income-related ESA, but if you satisfy the conditions above, you may be able to claim UC instead. If you already get ‘old-style’ contributory ESA, you can start getting a top-up of income-related ESA without making a new claim for income-related ESA (see here).
If you already get income-related ESA, you can carry on getting it until a change of circumstances means you need to move to UC, or until the DWP notifies you that your income-related ESA is stopping and that you must claim UC (this second scenario is known as ‘managed migration’). See here for more information.
 
1     Sch 1 para 6 WRA 2007 »
2     Reg 110 ESA Regs »
3     Regs 14-18 ESA Regs; Schs 1 para 2 and 2 para 2 ESA(TP)(EA)(No.2) Regs »
4     s115 IAA 1999 »
5     Reg 70 and Sch 5 para 11 ESA Regs »
Extra rules for contributory employment and support allowance
You can qualify for contributory ESA if, as well as satisfying the basic rules for ESA here:
    •for new-style contributory ESA, you accept a claimant commitment1s1(3)(aa) WRA 2007 (for more on claimant commitments, see here); and
    •for both old-style and new-style contributory ESA, you satisfy the national insurance (NI) conditions below or fall within very limited exceptions.2Sch 1 paras 1-4 WRA 2007
 
1     s1(3)(aa) WRA 2007 »
2     Sch 1 paras 1-4 WRA 2007 »
The national insurance conditions
The NI conditions relate to the two complete tax years falling immediately before the ‘relevant benefit year. A ‘tax year’ runs from 6 April to 5 April the following year. A ‘benefit year’ is almost the same as a calendar year and runs from the first Sunday in January. So, for example, if you claim in 2023, you must satisfy the contribution conditions for the tax years 2020/21 and 2021/22.1s1B and Sch 1 para 3(1)(f) WRA 2007; Sch 2 paras 2 and 15 ESA(TP)(EA)(No.2) Regs; regs 2(1) and 13 ESA Regs; regs 2 and 14 ESA Regs 2013
Note: if you are not sure that you have met the NI contributions recently enough, be aware of the linking rules on here.
The first condition: paid contributions
You must have paid, or be treated as having paid, at least 26 weeks’ class 1 or class 2 NI contributions on earnings at the lower earnings limit in one of the last two complete tax years immediately before the relevant benefit year. The 26 weeks do not need to have been consecutive.2ss6 and 6A SSCBA 1992; Sch 1 para 1 WRA 2007; reg 7 ESA Regs; reg 8 ESA Regs 2013 There are limited cases in which this condition does not apply.3Reg 8 ESA Regs; reg 9 ESA Regs 2013
Lower earnings limits
2020/21: £120
2021/22: £120
2022/23: £123
2023/24: £123
Example
If Alba makes a new-style ESA claim in 2023, she meets the first condition if she earned at least £120 a week for 26 weeks between 6 April 2020 and 5 April 2021 or between 6 April 2021 and 5 April 2022.
The second condition: paid or credited contributions
You must have paid or be treated as having paid class 1 or class 2 NI contributions, or received class 1 credits, on earnings of at least 50 times the lower earnings limit in each of the two complete tax years immediately before the relevant benefit year.4ss6 and 6A SSCBA 1992; Sch 1 para 2 WRA 2007
This condition cannot be satisfied by having reached this earnings level in fewer than 50 weeks except when you have paid or are treated as having paid class 1 contributions.
You qualify for class 1 NI credits during certain periods when you are not actually paying NI – eg, while you are getting ESA or statutory sick pay.5Reg 8B SS(Cr) Regs You may get these credits automatically or may need to apply. See CPAG’s Welfare Benefits and Tax Credits Handbook or gov.uk/national-insurance-credits/eligibility.
Example
If Jordan makes a new-style ESA claim in 2023, he meets the second condition if he paid (or is treated as having paid) contributions on total earnings of at least £6,000 (50 x £120) in 2020/21 and in 2021/22, or if he has received class 1 NI credits for 50 weeks in each of those tax years, or if he satisfies the condition through a combination of contributions and credits.
 
1     s1B and Sch 1 para 3(1)(f) WRA 2007; Sch 2 paras 2 and 15 ESA(TP)(EA)(No.2) Regs; regs 2(1) and 13 ESA Regs; regs 2 and 14 ESA Regs 2013 »
2     ss6 and 6A SSCBA 1992; Sch 1 para 1 WRA 2007; reg 7 ESA Regs; reg 8 ESA Regs 2013 »
3     Reg 8 ESA Regs; reg 9 ESA Regs 2013 »
4     ss6 and 6A SSCBA 1992; Sch 1 para 2 WRA 2007 »
5     Reg 8B SS(Cr) Regs »
Duration of contributory employment and support allowance
You are entitled to contributory ESA for a maximum of 365 days, unless you are assessed as having limited capability for work and work-related activity (ie, you are in the support group), in which case you can receive it indefinitely.1ss1A and 1B WRA 2007; ss51 and 52 WRA 2012 In some circumstances, you can requalify for contributory ESA.2ss1A and 1B WRA 2007; Vol 8 Ch 41, para 41847 DMG; V2045 ADM
 
1     ss1A and 1B WRA 2007; ss51 and 52 WRA 2012  »
2     ss1A and 1B WRA 2007; Vol 8 Ch 41, para 41847 DMG; V2045 ADM »
Who can make a new claim for employment and support allowance
Income-related ESA is being phased out and replaced with universal credit (UC). You cannot make a new claim for income-related ESA, but in certain circumstances you can start getting it for the first time without making a new claim (see here).
Contributory ESA is not being replaced with UC. You can make a new claim for contributory ESA. It will be for ‘new-style’ contributory ESA (see here).
Couples
Income-related employment and support allowance
A member of a couple can get income-related ESA which includes a personal allowance paid at the couple rate and premiums for both partners (see here). This is not a joint claim, only one of you is awarded the benefit. The amount of benefit you get takes into account both your and your partner’s income and capital. The non-claiming partner must not be working 24 hours or more a week or receiving certain benefits (see here).
If the non-claiming partner reaches pension age, but the claiming partner is still under pension age, the claiming partner can continue receiving income-related ESA calculated on a couple basis (although in practice it may stop because the other partner’s pension(s) are taken into account as income). If the claiming partner reaches pension age, ESA will stop, even while the non-claiming partner remains under pension age. In both scenarios, you are described as a ‘mixed-age couple’. For more information about mixed-age couples, see CPAG’s Welfare Benefits and Tax Credits Handbook.
Contributory employment and support allowance
You claim contributory ESA as an individual. Your eligibility is based on your individual NI record. Your ESA amount includes a personal allowance paid at the rate for a single person, and your partner’s NI contributions and pension income are not taken into account. If you and your partner both satisfy the conditions for getting contributory ESA, you can get an award each.
Disqualification
You can be disqualified from getting either kind of ESA for up to six weeks in certain circumstances – eg, when you have failed without ‘good cause’ to accept medical treatment.1s18 WRA 2007; regs 157 and 158 and Sch 5 para 14 ESA Regs; regs 63, 93 and 94 ESA Regs 2013 This is rare in practice. See CPAG’s Welfare Benefits and Tax Credits Handbook.
 
1     s18 WRA 2007; regs 157 and 158 and Sch 5 para 14 ESA Regs; regs 63, 93 and 94 ESA Regs 2013 »
2. The amount of benefit
The amount of income-related employment and support allowance
Note: if you are entitled to old-style contributory ESA with a top-up of income-related ESA, the total amount of ESA payable is calculated using the rules for income-related ESA.
Step one: calculate your applicable amount
Your applicable amount consists of:
    •a personal allowance (see here); and
    •a work-related activity component or support component (see below); and
    •premiums for additional needs (see here); and
    •a ‘transitional addition’ in some circumstances when you have moved to ESA from an older benefit.
This amount can be different while you are in the ‘assessment phase’ or while you are getting ESA at the ‘appeal rate’ (see here).
The work-related activity component
A work-related activity component of £33.70 a week (in 2023/24) may be included in your ESA if you have been assessed as having limited capability for work (see here) – ie, placed in the work-related activity group. However, the work-related activity component was abolished for new claimants of both contributory and income-related ESA from 3 April 2017. You can get the component if your current ESA entitlement started before 3 April 2017 and in other limited circumstances.1ss2(3) and 4(5) WRA 2007; s15 WRWA 2016; Sch 1 Part 1 ESAUC(MA) Regs
The support component
A support component of £44.70 a week (in 2023/24) is included in your ESA if you have been assessed as having limited capability for work and work-related activity (see here) – ie, placed in the support group.2ss2(2) and 4(4) WRA 2007
Premiums for income-related employment and support allowance
Your income-related ESA includes a severe disability premium if:3Sch 4 para 6 ESA Regs
    •you get a ‘qualifying benefit’ (either rate of the daily living component of personal independence payment (PIP) or adult disability payment (ADP), any rate of the care component of adult disability living allowance (adult DLA), attendance allowance (AA), armed forces independence payment, constant attendance allowance or severe disablement allowance); and
    •you do not have a partner, or your partner also gets a qualifying benefit or is certified as severely sight impaired or blind; and
    •you do not have a non-dependant aged 18 or over living with you (they do not count as a non-dependent if they also receive a qualifying benefit or are certified as severely sight impaired or blind); and
    •no one gets carer’s allowance (CA) or the universal credit (UC) carer element for looking after you or, if you are a couple, no one gets CA or the UC carer element for both of you (if you are a member of a couple and someone gets CA or the carer element for one, but not both, of you, you can get the severe disability premium at the single person’s rate).
Your income-related ESA includes an enhanced disability premium
if:4Sch 4 para 7 ESA Regs
    •you or your partner receive the highest rate of the adult DLA care component, the enhanced rate of the daily living component of PIP or ADP, or armed forces independence payment (if it is your partner who satisfies this, they must be under pension age); or
    •you qualify for the support component of ESA.
Your income-related ESA may also include a carer premium5Sch 4 para 8 ESA Regs or a pensioner premium.6Sch 4 para 5 ESA Regs
 
1     ss2(3) and 4(5) WRA 2007; s15 WRWA 2016; Sch 1 Part 1 ESAUC(MA) Regs »
2     ss2(2) and 4(4) WRA 2007 »
3     Sch 4 para 6 ESA Regs »
4     Sch 4 para 7 ESA Regs »
5     Sch 4 para 8 ESA Regs »
6     Sch 4 para 5 ESA Regs »
Step two: calculate your income and how much can be ignored
Consider income from other benefits, student finance, maintenance and pensions. Different types of income can have different effects on income-related ESA. Some can be ignored and have no impact on your award, and others may reduce it. See CPAG’s Welfare Benefits and Tax Credits Handbook.
Note: PIP, ADP, DLA, child disability payment (CDP) and AA are among the benefits that are ignored as income for income-related ESA.
Step three: calculate your income-related ESA entitlement
If your income is the same as or more than your applicable amount, you are not entitled to income-related ESA. If your income is less than your applicable amount, your income-related ESA entitlement is the difference between the two.
Step four: calculate your income-related ESA payment
Consider the effects of sanctions (see here), disqualification (see here), deductions1Reg 35, Sch 9 and Sch 9B SS(C&P) Regs and alternative payment arrangements (see here). These may reduce the amount of income-related ESA you actually receive.
 
1     Reg 35, Sch 9 and Sch 9B SS(C&P) Regs »
The amount of contributory employment and support allowance
Your contributory ESA award is made up of:
    •a personal allowance (see here); and
    •a support component or work-related activity component (see here); and
    •a ‘transitional addition’ in some circumstances when you have moved to ESA from an older benefit.
This amount can be different while you are in the assessment phase or while you are getting ESA at the appeal rate (see here).
Your contributory ESA is reduced if you receive certain pension payments of over £85 a week, or if you are a local councillor and your net allowances are more than £167 a week. It is reduced by 50 per cent of the amount by which the pension payments exceed £85 or the councillor allowances exceed £167.1s3 WRA 2007; regs 72-79 and 94(1) ESA Regs; regs 64-72 and 79 ESA Regs 2013 So, for example, if you receive a relevant pension of £185 a week, your contributory ESA is reduced by £50 (50 per cent of £100) a week.
The amount of contributory ESA you are actually paid can be reduced by sanctions (see here), disqualification (see here), deductions2Reg 35, Sch 9 and Sch 9B SS(C&P) Regs; regs 59 and 60 and Schs 6 and 7 UC,PIP,JSA&ESA(C&P) Regs and ‘alternative payment arrangements’ (see here).
 
1     s3 WRA 2007; regs 72-79 and 94(1) ESA Regs; regs 64-72 and 79 ESA Regs 2013 »
2     Reg 35, Sch 9 and Sch 9B SS(C&P) Regs; regs 59 and 60 and Schs 6 and 7 UC,PIP,JSA&ESA(C&P) Regs »
The waiting days, the assessment rate and the appeal rate
You are not usually entitled to either income-related or contributory ESA for a period of seven ‘waiting days’ at the beginning of your period of limited capability for work.1Reg 144 ESA Regs; reg 85 ESA Regs 2013 There are exceptions – eg, if you have stopped getting statutory sick pay, or certain other benefits, in the last 12 weeks.
When you are first entitled to either type of ESA, you are in an ‘assessment phase’ until a decision is made on your limited capability for work.2s2(1)(a) WRA 2007; regs 7 and 67(2) and Sch 4 para 1(1)(b) and (c) ESA Regs; regs 7 and 62(1) ESA Regs 2013 During the assessment phase, you are not usually paid the work-related activity component or the support component of ESA. There are exceptions – eg, if you are regarded as being terminally ill.3Reg 7 ESA Regs; reg 7 ESA Regs 2013 If you are under 25, you are also paid a lower rate of the standard allowance during the assessment phase.
If the assessment phase lasts longer than 13 weeks, your full award is backdated to the 14th week of your claim.4Reg 7(38) SS&CS(DA) Regs; reg 35(7) UC,PIP,JSA&ESA(DA) Regs Sometimes the 13 weeks can count as having started before you claimed ESA (see the linking rules here).5Reg 5 ESA Regs; reg 6 ESA Regs 2013
If you are appealing a decision that you are fit for work and not eligible for income-related or contributory ESA, you may be entitled to get that type of ESA as the ‘appeal rate’ (see here) until your appeal is decided .
 
1     Reg 144 ESA Regs; reg 85 ESA Regs 2013 »
2     s2(1)(a) WRA 2007; regs 7 and 67(2) and Sch 4 para 1(1)(b) and (c) ESA Regs; regs 7 and 62(1) ESA Regs 2013 »
3     Reg 7 ESA Regs; reg 7 ESA Regs 2013 »
4     Reg 7(38) SS&CS(DA) Regs; reg 35(7) UC,PIP,JSA&ESA(DA) Regs »
5     Reg 5 ESA Regs; reg 6 ESA Regs 2013 »
3. Making a claim
Claiming income-related employment and support allowance
You cannot make a new claim for income-related employment and support allowance (ESA), but if you are already entitled to ‘old-style’ contributory ESA, you may be able to start getting a top-up of income-related ESA without having to make a new claim.1s6 WRA 2007; LH v SSWP (ESA) [2014] UKUT 480 (AAC), reported as [2015] AACR 14 You can request this by telephone on 0800 169 0310 (textphone: 0800 169 0314; Relay UK and BSL relay services available). You usually need to complete an ESA3 form.
 
1     s6 WRA 2007; LH v SSWP (ESA) [2014] UKUT 480 (AAC), reported as [2015] AACR 14 »
Claiming contributory employment and support allowance
You can start a claim for ‘new-style’ contributory ESA:1Regs 13 and 15 UC,PIP,JSA&ESA(C&P) Regs; gov.uk/employment-support-allowance/how-to-claim
    •by telephone on 0800 055 6688 (textphone: 0800 328 1344; Relay UK and BSL relay services available), specify that you want to claim new-style contributory ESA.
The date of claim is generally the date you submit a claim online or start a claim by telephone.2Regs 13(5), 14, 15(4) and 16 UC,PIP,JSA&ESA(C&P) Regs
At the start of your claim, you are usually required to provide a fit note showing that your GP or another professional has declared you unfit for work. You are then referred for a work capability assessment (WCA) (see here).
 
1     Regs 13 and 15 UC,PIP,JSA&ESA(C&P) Regs; gov.uk/employment-support-allowance/how-to-claim »
2     Regs 13(5), 14, 15(4) and 16 UC,PIP,JSA&ESA(C&P) Regs »
Claiming in advance and backdating
You can claim new-style contributory ESA in advance, up to three months before the date on which you qualify for it.1Reg 34 UC,PIP,JSA&ESA(C&P) Regs
You can ask that your claim for new-style ESA is backdated by up to three months if you met the qualifying conditions during that time. You do not need to have special reasons for backdating.2Reg 28 UC,PIP,JSA&ESA(C&P) Regs If you might have qualified for ESA more than three months ago but did not claim because you were given the wrong information or misled by the DWP, you could complain and ask for compensation (see here).
Note: the term ‘backdating’ is often informally used to mean getting arrears of your benefit going back to a claim or decision date – eg, after winning an appeal. However, in this Handbook, we use backdating to mean getting paid benefit for a period before the date you claimed.
 
1     Reg 34 UC,PIP,JSA&ESA(C&P) Regs »
2     Reg 28 UC,PIP,JSA&ESA(C&P) Regs »
Additional support and appointees
If you have (or will have) difficulty with the claims process and need additional support, see Chapter 18. If you cannot manage the claims process at all you may need an appointee (see here).
4. How you are assessed
The work capability assessment
To qualify for employment and support allowance (ESA), you must usually have a work capability assessment (WCA).
The WCA is used by the DWP to decide whether:
    •you are ‘fit for work’ and are therefore not eligible for ESA; or
    •you have limited capability for work and can be placed in the ‘work-related activity group’ – ie, you can get ESA without being required actively to look for work, but are considered well enough to do some work preparation activity such as training or work-focused job centre appointments (see here); or
    •you have limited capability for work and work-related activity and can be placed in the ‘support group’ – ie, your health condition or disability is considered so severe that, in addition to not being able to work, you are not required to take steps to prepare for work.
As well as affecting your work-related requirements, this decision affects the amount of ESA you get (see here).
The assessment process
Most claimants are assessed using the standard WCA rules and processes described here. They apply to both ESA and universal credit (UC), except where otherwise stated.
In the following circumstances, a decision is made on your work capability without you going through the usual WCA process or meeting the usual conditions.
Treated as having limited capability for work
You are automatically treated as having limited capability for work for ESA in a number of circumstances.1Regs 20, 25, 26, 30, and 33 and 35 ESA Regs; regs 16, 21, 22 and 26 ESA Regs 2013; EI v SSWP (ESA) [2016] UKUT 397 (AAC) Many of these relate to physical health or pregnancy. The main circumstances relevant to your mental health are where:
    •You are an inpatient in hospital where you have been medically advised to stay for at least 24 hours, or are recovering from treatment as an inpatient (and the DWP is satisfied that your condition remains sufficiently serious), including if you are attending a residential programme of rehabilitation for drug or alcohol addiction.
    •You get income-related ESA while in education under the rules here (ie, because you are getting a qualifying disability benefit).
    •For new-style contributory ESA only, you get UC and have already been assessed as having limited capability for work for UC.
    •You are applying for ESA and have provided a current medical certificate, but the WCA has not yet been carried out – ie, you are in the ‘assessment phase’. However, this does not apply if you are reclaiming ESA after having failed the WCA, unless your condition has significantly worsened or you have a new health condition.
    •You are appealing against a decision that you have failed the WCA, and you have submitted a medical certificate. However, this will not apply if you were treated as failing the WCA because you failed to return the ESA50 questionnaire or failed to attend the medical. Unless your current claim for ESA was made before 30 March 2015, this rule only applies if this is the first time you have failed the WCA, or the first time since a previous decision that you satisfied it.
    •You are reclaiming ESA and have provided a current medical certificate, after being treated as failing the WCA because you failed to return the ESA50 questionnaire or failed to attend the medical. You can get ESA while waiting for your assessment. However, this only applies if:
      ◦you have now returned the questionnaire; or
      ◦it is more than six months since the decision treating you as not having limited capability for work; or
      ◦your condition has significantly worsened; or
      ◦you have a new health condition.
Remember that the DWP has guidance about the steps it should take following a failure to return an ESA50 form (see here) or a failure to attend an assessment (see here). It should not always treat you as having failed the WCA as a result.
Note: special rules might also mean you are found to have limited capability for work if, because of your health condition or disability, work poses a substantial risk to your health (see here).
Examples
Evan has bipolar disorder. He applied for contributory ESA a few months ago but failed the work capability assessment. He is now experiencing a significant depressive episode so he reclaims contributory ESA, supplying a medical certificate. The DWP accepts that Evan’s symptoms have significantly worsened, and so treats him as having limited capability for work and pays him ESA while a new work capability assessment is arranged.
Dionne has a long-term mental health problem. She claims contributory ESA but does not return the ESA50 form. In spite of DWP policy (see here), she is treated as having failed the work capability assessment and her ESA stops. Dionne is not aware of any right to challenge this decision, but reclaims contributory ESA two months later. She is not paid any ESA until she has completed and returned a new ESA50 form.
 
1     Regs 20, 25, 26, 30, and 33 and 35 ESA Regs; regs 16, 21, 22 and 26 ESA Regs 2013; EI v SSWP (ESA) [2016] UKUT 397 (AAC)  »
Treated as having limited capability for work and work-related activity
You are treated as having limited capability for work and work-related activity (LCWRA) for ESA if:1Regs 34 and 35 ESA Regs; regs 30 and 31 ESA Regs 2013
    •you are regarded as being terminally ill – ie, your death can reasonably be expected within 12 months; or
    •you are receiving chemotherapy or radiotherapy treatment for cancer, or are recovering from that treatment, or you are likely to receive such treatment within six months from the date the DWP determines whether or not you have LCWRA, and the DWP is satisfied that you have LCWRA; or
    •you are pregnant and there will be a serious risk of damage to your health or to your baby’s health if you do not refrain from work-related activity.
Note: special rules also apply if, because of your health condition or disability, work-related activity poses a substantial risk to your health (see here).
 
1     Regs 34 and 35 ESA Regs; regs 30 and 31 ESA Regs 2013 »
Treated as not having limited capability for work
You are treated as not having limited capability for work for ESA if:
    •you are asked by the DWP to provide a new fit note after an earlier one runs out, and after six weeks you have still not done so (in this situation, you are treated as not having limited capability for work only if the DWP is satisfied that this is appropriate in the circumstances – ie, not automatically);1Reg 32A ESA Regs; reg 28 ESA Regs 2013 or
    •you do not return an ESA50 questionnaire or attend a medical, and you do not have good cause (see here);2s19 SSA 1998; regs 21-24 and 36-39 ESA Regs; regs 17-20 and 33-36 ESA Regs 2013 or
    •you work (with some exceptions, see here);3Reg 44 ESA Regs; reg 37 ESA Regs 2013 or
    •you are in prison, in some circumstances;4Reg 159 ESA Regs; reg 95 ESA Regs 2013 or
    •you attend a training course and receive a training allowance or premium, unless the training allowance or premium was only for travelling or meal expenses;5Reg 32(2) and (3) ESA Regs; reg 27 (2) and (3) ESA Regs 2013 or
    •you are (or were) a member of the armed forces and the day in question is a day of sickness absence from duty.6Reg 32(1) ESA Regs; reg 27(1) ESA Regs 2013
 
1     Reg 32A ESA Regs; reg 28 ESA Regs 2013 »
2     s19 SSA 1998; regs 21-24 and 36-39 ESA Regs; regs 17-20 and 33-36 ESA Regs 2013 »
3     Reg 44 ESA Regs; reg 37 ESA Regs 2013 »
4     Reg 159 ESA Regs; reg 95 ESA Regs 2013 »
5     Reg 32(2) and (3) ESA Regs; reg 27 (2) and (3) ESA Regs 2013 »
6     Reg 32(1) ESA Regs; reg 27(1) ESA Regs 2013 »
Periods of limited capability for work
Different periods of limited capability for work can be linked to form one continuous period for ESA. Different periods are linked if they are not more than 12 weeks apart.1Regs 2 (definition of ‘period of limited capability for work’) and 145 ESA Regs; regs 2 and 86 ESA Regs 2013
If periods of limited capability for work are linked, it means that:
    •the question of whether or not you satisfy the national insurance contribution conditions for contributory ESA may be decided at the beginning of the first period (see here);2paras 1-3 Sch 1 WRA 2007
    •you may not have to serve further ‘waiting days’ (see here) before becoming entitled to ESA because you have already served them; and
    •you may get one of the additional ESA components straight away rather than waiting out an ‘assessment phase’ (see here).
 
1     Regs 2 (definition of ‘period of limited capability for work’) and 145 ESA Regs; regs 2 and 86 ESA Regs 2013 »
2     paras 1-3 Sch 1 WRA 2007 »
5. Decisions
Work capability decisions
In practice, the decision about your capability for work may be made by the DWP between four and eight weeks after you attend an assessment. You should get a decision letter by post.
There are three possible work capability decisions:
    •that you are ‘fit for work’; or
    •that you have ‘limited capability for work’; or
    •that you have ‘limited capability for work and work-related activity’.
There is more information about these outcomes here.
If you are found ‘fit for work’
If a decision is made that you are ‘fit for work’ (either following a work capability assessment, or automatically under the rules here), then you are not entitled to employment and support allowance (ESA). If you have been getting ESA, your benefit is stopped.
If you disagree with the decision, you can often appeal it without asking for a mandatory reconsideration first (see here). Note that there are deadlines for appealing decisions.
You can usually continue to get ESA while an appeal about your work capability is pending, if you continue providing fit notes (see here). If you claim universal credit while appealing an ESA decision, you cannot later go back on to ‘old-style’ ESA, even if you win your appeal.
Examples
Ashley stops work because of his mental health, and claims ESA for the first time. His claim is for ‘new-style’ contributory ESA. While he is waiting for an assessment he supplies fit notes and is paid ESA at the assessment phase rate (see here). Following his assessment, he receives a decision that he is ‘fit for work’ and his ESA stops. Ashley disagrees with the decision and lodges an appeal immediately. He also continues sending fit notes to the DWP. Ashley’s ESA payments resume and continue until his appeal is decided. He is paid at the ‘appeal rate’ which is the same as the assessment phase rate he had previously been getting.
June has a long-term mental health problem. She gets income-related ESA and is in the support group. After a reassessment, she receives a decision saying that she is ‘fit for work’ and her ESA stops. June’s friend tells June that she cannot get her income-related ESA back and must claim universal credit. However, June’s adviser explains that this is incorrect: June can get income-related ESA at the ‘appeal rate’ while appealing the decision and, if she wins her appeal, her full award will be reinstated and backdated to the date of the decision.
If you are found to have limited capability for work
As well as challenging a decision that you are ‘fit for work’, you can challenge a decision that you have limited capability for work (ie, placing you in the work-related activity group), if you think that the decision is wrong and that you actually have limited capability for work and work-related activity (ie, should be placed in the support group). In this situation, you do normally need to ask for a mandatory reconsideration before appealing (see here). It is usually best to get advice before challenging this kind of decision, as a new decision maker (or the tribunal) will look at the whole decision again and could decide that you are ‘fit for work’.
Length of awards
Awards of ESA are not fixed-term. Your work capability is usually reassessed at a future point (see here). You cannot appeal a decision about how often you are reassessed, but you may be able to challenge it through judicial review (see here).
Other decisions
After making a new claim for ESA, you may receive a decision that you cannot get ESA because you do not meet the eligibility conditions listed here, such as the national insurance conditions for contributory ESA. You can challenge this decision through mandatory reconsideration and appeal (see Chapter 17), and provide further evidence if necessary.
While getting ESA, you are likely to receive a range of other decisions, including:
    •if you are in the ‘work-related activity group’, decisions by your work coach about what your work-related requirements will be (see here). These decisions are not appealable but you may be able to challenge them through a complaint or judicial review (see Chapter 17);
    •decisions about whether you have been overpaid ESA and whether an overpayment can be recovered. Overpayments are not within the scope of this Handbook. See CPAG’s Welfare Benefits and Tax Credits Handbook.
6. Getting paid
When you are paid
Both income-related employment and support allowance (ESA) and contributory ESA are usually paid fortnightly in arrears, although they can be paid at different intervals, including at a daily rate.1Reg 26C SS(C&P) Regs; reg 51 UC,PIP,JSA&ESA(C&P) Regs
If you are waiting for a decision on your claim or you are waiting to be paid and you are in financial need, you may be able to get an advance loan of your income-related or contributory ESA.2Regs 5 and 6 SS(PAB) Regs This is called a ‘short-term advance’.
Note:
    •For the rules about whether you can be paid ESA while waiting for a decision on a new claim or while appealing a decision, see here.
    •If you are moving from ESA to universal credit, see here for information about ESA ‘run-on’.
    •It is possible for payment of ESA to be suspended (see here).
 
1     Reg 26C SS(C&P) Regs; reg 51 UC,PIP,JSA&ESA(C&P) Regs »
2     Regs 5 and 6 SS(PAB) Regs »
Where your payment goes
ESA is usually paid directly into your bank account. The DWP can alternatively pay all or part of your income-related ESA or ‘old-style’ contributory ESA to someone else, if this is in your interests.1Reg 34(1) SS(C&P) Regs These ‘alternative payment arrangements’ might be useful if, for example, you want a trusted family member to look after your ESA income because your mental health problem makes it difficult for you to manage money. ESA can also be paid to an appointee (see here).
If you do not have a bank account, you can ask for your ESA to be paid into somebody else’s account as above, or you can ask to be considered for DWP’s payment exception service.2See gov.uk/payment-exception-service
 
1     Reg 34(1) SS(C&P) Regs »
2     See gov.uk/payment-exception-service »
7. Reviews and reassessments
Your entitlement to income-related or contributory employment and support allowance (ESA) can change after an award has been made. In certain circumstances, the DWP reviews your entitlement or reassesses you.
Work capability
There are no rules on how often your work capability can be reassessed. Usually, the original assessor recommends how long it should be before you are reassessedl. You may be reviewed sooner if you report an improvement or a deterioration in your condition. The DWP has stated that if you are assessed as having limited capability for work and work-related activity, have a ‘severe, lifelong’ disability or condition, and are ‘unlikely to ever be able to move into work’, you will not be reassessed.1DWP, Employment and Support Allowance and Universal Credit: changes to the work capability assessment from 29 September 2017, September 2017
On reassessment you are likely to go through the same assessment process as when you claimed ESA (see here).
 
1     DWP, Employment and Support Allowance and Universal Credit: changes to the work capability assessment from 29 September 2017, September 2017 »
Change of circumstances
You should report all changes in your circumstances to the ESA section of the DWP as soon as possible. Do not assume that the section of the DWP that administers your ESA already knows something – eg, about changes to the other DWP benefits you claim or about a pension. You can report a change by telephone (0800 169 0310 (textphone: 0800 169 0314; Relay UK and BSL relay services available) but it may be better to do it in writing, using the address on your ESA decision letters, so that there is a clear record of what you have said and when.
When you notify the DWP of a change of circumstances, it can change the decision on your ESA entitlement, usually by ‘supersession’ (see here).
If you get income-related ESA and your change of circumstances is that you or your partner now receive personal independence payment, adult disability payment, disability living allowance, child disability payment or attendance allowance (ie, a ‘qualifying benefit’), you might be eligible for additional amounts in your ESA. For more information about the date that these additional amounts start from, see here.
Certain changes in your circumstances might also mean that you need to move from income-related ESA to universal credit (see here).
Ongoing evidence requirement
Once you are getting ESA, you may be asked to provide information at any time, and if you fail to do so, ESA could be suspended or even terminated.1Reg 32(1) SS(C&P) Regs; reg 17 SS&CS(DA)Regs; reg 38(2) UC,PIP,JSA&ESA(C&P) Regs; reg 45 UC,PIP,JSA&ESA(DA) Regs
 
1     Reg 32(1) SS(C&P) Regs; reg 17 SS&CS(DA)Regs; reg 38(2) UC,PIP,JSA&ESA(C&P) Regs; reg 45 UC,PIP,JSA&ESA(DA) Regs
 »
8. Employment and support allowance and other benefits
Means-tested benefits and tax credits
If you get income-related employment and support allowance (ESA) you have ‘passported’ entitlement to:
    •maximum housing benefit (HB – see here); and
    •maximum child tax credit; and
    •usually, maximum working tax credit; and
    •Scottish child payment.
Note: passported entitlement does not mean you will get these benefits or tax credits without making a claim for them, and some of them are no longer open to new applications.
If you are moving from income-related ESA to UC, see here.
If you get contributory ESA, you may be able to get a means tested benefit to top up your income. If you get ‘old-style’ contributory ESA, you may be able to get a top-up of income-related ESA (see here). If you get ‘new-style’ contributory ESA, you may be able to get universal credit to top up your income.
Non-means-tested benefits
Many non-means tested benefits are taken into account as income when working out the amount of income-related ESA you get. However, personal independence payment (PIP), adult disability payment (ADP), disability living allowance (DLA), child disability payment (CDP) and attendance allowance (AA) are not taken into account and can in fact increase your income-related ESA by making you eligible for premiums (see here).
Contributory ESA is affected by the rules on overlapping benefits, which means that you may not be paid it in full if you are being paid another earnings-replacement benefit – eg, carer’s allowance.1Reg 4(5) SS(OB) Regs
 
1     Reg 4(5) SS(OB) Regs »
The benefit cap
In some cases, there is a limit on your total income from specified benefits (the ‘benefit cap’). ESA is one of the specified benefits. You are not subject to the benefit cap if your ESA includes a support component, or if you get certain other benefits (eg, if you get PIP, ADP, DLA, CDP or AA). See CPAG’s Welfare Benefits and Tax Credits Handbook.
Other sources of financial help
If you qualify for income-related ESA, you are automatically eligible for some health benefits such as free prescriptions. You may also qualify for council tax reduction and a range of other financial help. See CPAG’s Welfare Benefits and Tax Credits Handbook .