ESA and students

 

Angela Toal describes the main employment and support allowance (ESA) rules for students, pointing out where they are more restrictive than at present.

ESA replaces incapacity benefit (IB), and income support (IS) on disability grounds, from 27 October 2008. New claims for IB cannot be made from 27 October 2008, unless the claimant can backdate the claim or reclaim under 'linking rules'. Likewise, the current rules within IS which allow full-time disabled students to claim no longer exist for new claims from that date, unless they can link to a previous IS claim. Full-time students who are ill or disabled and making a claim for benefit on those grounds will have to claim ESA.

ESA has two elements - contributory and income-related. The contributory element essentially replaces incapacity benefit - you can claim it if you have paid enough national insurance (NI) contributions, or are eligible under the youth conditions. There are no special rules affecting students claiming on the former grounds - if they have paid enough NI contributions and satisfy the other conditions of entitlement, then they are eligible. Students claiming under the youth conditions however, must not be in full-time education if they are under 19, although hours of tuition 'not suitable for persons of the same age who do not have a disability' are ignored.1 Reg 12(2) ESA RegsThe ex-student route in IB, allowing young people up to 25 to claim under the youth conditions, is replicated in contributory ESA.

Income-related ESA is more problematic for full-time students. It is designed to replace IS on grounds of disability, but the rules for full-time students claiming it are less generous than the IS rules. For new claims up until 27 October 2008, full-time disabled students can claim IS if they are eligible for the disability premium, if they receive a disabled students' allowance on grounds of deafness, or if they have been incapable of work for 28 weeks or more.2 Sch 18 paras 10 and 12 IS Regs For income-related ESA, the starting point is that full-time students cannot claim, with one exception - for full-time students on disability living allowance (DLA) - either component, any rate.3 Reg 18 ESA Regs

Note that the rules for who counts as a full-time student for income-related ESA are the same as for IS. A 'qualifying young person' is also treated as a full-time student. The definition is the same as for child benefit and applies to people in full-time non-advanced education, or on an approved training course, who are under 20 and, in some circumstances, for a period after they have left. For a 19-year-old to count as a qualifying young person, they must have been under 19 when they were accepted on, enrolled on or started the course.

Qualifying for ESA depends on someone having limited capability for work, rather than the previous test of incapacity for work. Full-time students (but not qualifying young people) who get DLA (either component, any rate) are treated as having limited capability for work for the purposes of income-related ESA.4 Reg 33 ESA Regs This means they will not be required to pass the test of limited capability for work. However, if they are also claiming contributory ESA they will have to satisfy the test, as will qualifying young people claiming income-related ESA.

The test of limited capability for work is assessed during a work capability assessment, which also comprises two other tests (Welfare Rights Bulletin 204, page 6). Although full-time students on DLA are treated as having a limited capability for work so satisfy the limited capability for work test, they may still have to undergo the others. One is the limited capability for work-related activity test, which assesses whether someone is in the support group (more severely disabled people) or the work-related activity group (everyone else). The other is the work-focused health-related assessment, which assesses the health-related support that a person needs to improve their ability to obtain or remain in work.

Full-time students who would have qualified for income support because they had been incapable of work for 28 weeks or more will not have access to income-related ESA on a similar ground; this will only be possible if they get DLA. This will mean people with a long-term illness, but without the care or mobility needs necessary to qualify for DLA, will be unable to get a means-tested benefit if they enter full-time education. Although, in higher education, receipt of the student loan or other student funding would have meant no or greatly reduced entitlement during the academic year, in the summer vacation this income would have been very important. Such income will no longer be available to full-time students without DLA. Similarly students on courses of further education who do not get DLA, and are only eligible for income-related ESA, will not be able to stay on benefit during the course. Under the IS rules a disabled student would usually be able to stay on their income support, whether or not they get DLA, and pursue a course of further education.

In addition, students who are eligible for ESA (contributory or income-related) and found to be in the work-related activity group rather than the support group will, it is expected, be required to attend work-focused health-related assessments and work-focused interviews. It is not known how easy it will be to have these deferred if someone is engaged in full-time education. Further down the line, the Government intends people in the work-related activity group to engage in work-related activity. It remains to be seen whether this will also be required of full-time students.

Part-time students are not subject to any special rules when claiming ESA. They will be eligible for contributory ESA if they have paid enough NI contributions or are eligible under the youth conditions. They can claim income-related ESA if they satisfy the means test; unlike the full-time student rules, there is no requirement that they get DLA.

Housing benefit (HB) rules allow full-time disabled students to qualify on the same grounds as they can currently qualify for IS: if they are eligible for a disability premium, get a disabled students' allowance because of deafness, or have been incapable of work for 28 or more weeks. From 27 October 2008, when ESA is introduced, this will change, but will not be as restrictive as eligibility for income-related ESA. Full-time students will continue to be eligible for HB on the grounds listed above, but also if they have had limited capability for work for 28 weeks or more.5 Reg 17 ESA (CP) Regs (SI 2008 No. 1082)This means that although full-time students with a disability or long-term illness who do not get DLA will not be eligible for income-related ESA, they will still be able to claim HB after 28 weeks of limited capability for work.

Overall, the implications of ESA for students are concerning. In the first place, fewer students will be able to access the income-related strand of the new benefit, which may result in fewer disabled people going into full-time education, or in more dropping out because of financial hardship. Secondly, conditionality attached to ESA may well interfere with the ability to attend a full-time course, given the proposed increase in the number of interviews people are required to attend and, in the longer term, the requirement to engage in work-related activity. The Government's agenda of getting disabled people back into work does not, on the face of it, promote the acquisition of skills through full-time education as a route to employment - the sort of skills that are arguably more likely to lead to sustainable employment. It's therefore hard to see how such a restrictive policy fits with the Government's other objectives to increase skills and sustainable employment and achieve equality for those with a disability by 2025.

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