‘Old-style’ ESA: who can get it?

In many cases, the only type of employment and support allowance (ESA) now available is ‘new-style’ ESA. That is contributory ESA claimed under the universal credit (UC) system. But what about ‘old-style’ ESA? Simon Osborne looks at what that is and who might still be able to get it.

In plain terms, ‘old-style’ ESA is ESA awarded and paid outside the UC system. It can comprise both contributory ESA (ie, essentially non-means tested) and income-related ESA – ie, means tested.

By contrast, ‘new-style’ ESA is ESA awarded and paid under the UC system. It only has one form, which is contributory. This contributory ESA is in effect identical to old-style contributory ESA. But if the claimant also requires means-tested support, that must be via UC. That is because under the UC system, income-related ESA is replaced by UC.

More technically, for an individual claimant new-style ESA replaces old-style ESA when UC system rules are triggered. Those rules include the abolition for that claimant of income-related ESA, and the recasting of the ESA rules to exclude any reference to income-related ESA. Contributory ESA is not formally abolished under these rules. But any existing entitlement to contributory old-style ESA becomes an award of new-style ESA. So the net result is the effective abolition of old-style ESA. In such cases, the main rules on ESA entitlement that then apply are those re-garding ‘new-style’ ESA. They refer only to contributory ESA, and are contained in the Employment and Support Allowance Regulations 2013.1SI 2013 No.379

If, on the other hand, the UC system rules have not been triggered for the claimant, then income-related ESA has not been abolished and the ESA rules have not been recast so as to exclude reference to income-related ESA. In such a case, the main rules on ESA continue to be those for ‘old-style’ ESA. They refer to both income-related ESA and contributory ESA, and are contained in the Employment and Support Allowance Regulations 2008.2SI 2008 No.794

Old-style ESA has not been abolished or replaced by new-style ESA in each and every case. So some claimants can still get it.

It is in effect abolished (ie, income-related ESA formally abolished, and contributory ESA replaced by new-style ESA) in any case where rules commencing the UC system are triggered for the claimant concerned. Those rules are contained in legislation (called Commencement Orders) introducing UC, contained in the Welfare Reform Act 2012, into force. Because UC was introduced, or ‘rolled out’, geographically (ie, with reference to postcode districts) over a period of time, there are many such Commencement Orders, each one introducing UC into a new set of postcode districts.

However, the provisions on what triggers the effective abolition of old-style ESA and the introduction of new-style ESA are common to all of the UC Commencement Orders. In essence, this occurs when, UC having been introduced, the claimant then makes a new claim for UC, ESA (either contributory or income-related) or jobseeker’s allowance (JSA) (either contribution-based or income-based).3These rules are at Article 4 of the relevant Commencement Order for the area concerned. See, for example, the original ones contained in Article 4 of The Welfare Reform Act 2012 (Commencement No.9 and Transitional and Transitory Provisions and Commencement No.8 and Savings and Transitional Provisions (Amendment)) Order 2013, No.983 (‘the No.9 Order’). The requirement for a new claim is key. Although complications concerning things like whether a claim has in fact been made, it remains that it is only a new claim for UC, ESA or JSA that triggers the changes.

The basic requirement is that: (1) UC rules must have been introduced, and (2) a new claim for UC, ESA or JSA has subsequently been made. The requirement in (1) means that for past periods it will be important whether or not, at the time of the claim, UC had been introduced into the area in which the claimant lived. The UC ‘full service’ (or ‘digital service’), which provided for abolition for most new claimants, began to be ‘rolled out’ from 11 November 2014. The roll-out was completed by 12 December 2018. Before that latter date, therefore, the possibility of abolition will have depended on the postcode district in which the claimant was living. From that date, however, that is not relevant.

A further qualification, this time concerning requirement (2) but again regarding a past period, applies regarding some severely disabled claimants. From 16 January 2019 until 27 January 2021, claimants entitled to the severe disability premium (SDP) were prevented by law from claiming UC, by the ‘SDP gateway’. For such claimants, old-style ESA was not subject to effective abolition on a new claim, and new-style ESA was not introduced on such a claim.4The SDP gateway was at reg 4A Universal Credit (Transitional Provisions) Regulations 2014, No.1230; the rules providing that old-style ESA is not abolished and new-style ESA not introduced in SDP gateway cases is at Art 5A of the No.9 Order. The SDP gateway closed on 27 January. From then, UC can be claimed and, in the event of a new claim for UC, ESA or JSA, even a severely disabled claimant will have old-style ESA in effect abolished and new-style ESA introduced.

The short answer is no. Since the final roll-out of UC in December 2018, followed by the closing of the SDP gateway on 27 January 2021, any new claim for ESA now will result in the effective abolition of old-style ESA and the introduction of new-style ESA.

Hence, official advice about making a new claim for ESA now makes exclusive referral to new claims for new-style ESA. This reflects the basic position that although new-style ESA (ie, contributory ESA under the UC system) can still be claimed, means-tested support in such cases must be via UC.

The impossibility of getting old-style ESA on a new claim may obscure the fact that many claimants can still get it. This is because a new award of old-style ESA can still be made in some cases without the need for a new claim, and current awards of old-style ESA can continue in many cases.

The short answer is yes, in some circumstances where no new claim is made.
The main circumstance arises from the fact that, legally speaking, old-style ESA is a single benefit, albeit with two forms – ie, contributory and income-related. So a claimant who already has an award of old-style contributory ESA can have that award changed, so as to award income-related ESA, without the need for a new claim. The change would typically be via a supersession of the existing award (rather than by a new claim).

Established authority from the Upper Tribunal has confirmed that old-style ESA is a unitary benefit, so that an award of the income-related form can begin, without a new claim, where there is an existing award of the contributory form.5LH v SSWP [2015] AACR 14 More recent authority has adopted this, and pointed out that even where entitlement to old-style contributory ESA has been exhausted after a year without being in the support group, if the ESA award is not formally terminated on supersession then the award still exists, and so can formally be changed to award income-related ESA without a new claim being necessary.6RS v SSWP (ESA) [2021] UKUT 112 (AAC)

The DWP should therefore accept that an existing award of old-style ESA can be changed – for example, so as to include income-related ESA. In practice, the most common situation in which this is likely to apply is where the claimant has a fairly long-standing existing award of old-style contributory ESA (from before 12 December 2018 at least), or claimed ESA while subject to the SDP gateway. Key questions may therefore involve the postcode district in which the claimant was living at the time the ESA claim was made, whether the award of contributory ESA was terminated after a year without being in the support group, or whether the SDP gateway applied at the time the ESA claim was made.

From 11 October 2010, awards of old incapacity benefits were subject to ‘conversion’ to awards of ESA. That process proved long, complicated and error ridden. However, the basic end result was that the claimants concerned ended up (in appropriate cases) with an award of ESA. Was the award one of old-style ESA or new-style ESA? The question arises because conversion may well have taken place after the introduction of UC into the claimant’s postcode district.

Very arguably, the ESA awarded on conversion will have been old-style ESA, as long as the claimant did not also claim UC. Certainly, income-related ESA was (or at least should have been) awarded where appropriate. Moreover, the rules provided that ESA was awarded on conversion without a claim 7Reg 3(1)(l) Social Security (Claims and Payments) Regulations 1987, No.1968 (the ‘Claims and Payments Regulations’), inserted by Sch 2 para 18 Employment and Support Allowance (Transitional Provisions, Housing Benefit And Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010, No.1907 – so there was nothing about conversion itself to trigger the effective abolition of old-style ESA. A rule about conversion cases in the UC Commencement Orders would seem to apply abolition only in the context of where a new claim (for example, for UC) has also been to instruct decision makers that the new-style ESA provisions only apply where a new claim is made during or after the conversion process.8Art 9 No.9 Order, applied by subsequent Commencement Orders; Vol V8, paras V8023 and V8024 Advice for Decision Making (ADM)

The short answer is yes, while the basic rules of entitlement remain satisfied. This is likely to apply to many cases. At some as yet unspecified date in the future, a ‘managed migration’ process will see current recipients of income-related ESA ‘manage migrated’ to UC (with any contributory ESA becoming new-style ESA), but that process has not yet begun and will take years to complete.

There is nothing in the UC Commencement Orders or elsewhere to terminate a current award of old-style ESA, unless and until a new claim for UC, ESA or JSA is made. So, for example, a claimant with an existing award who continues to satisfy the basic entitlement rules (eg, having limited capability for work, continuing to satisfy the means test regarding an award of income-related ESA) will continue to get old-style ESA if s/he does not make such a new claim. If such a claim is made, under so-called ‘natural migration’ abolition of income-related ESA will be triggered, and any contributory ESA will become new-style ESA.

If the claimant ceases to satisfy the basic entitlement rules (eg, s/he fails the work capability assessment so that s/he no longer has limited capability for work), then the award will be terminated. Even then, however, old-style ESA is only in effect abolished and new-style ESA introduced, if the claimant makes a new claim for UC, ESA or JSA (and so undergoes ‘natural migration’). If s/he avoids making such a new claim while challenging the termination (for example, while challenging a failure of the work capability assessment), if the challenge is successful s/he can return to getting old-style ESA. If, however, s/he has claimed UC, ESA or JSA, then even if the challenge is successful s/he cannot return to old-style ESA. Instead, any entitlement to contributory ESA will be new-style ESA, and any means-tested top-up will have to be via UC. An automatic payment of reduced ESA pending appeal is paid without a formal claim, so does not trigger abolition of old-style ESA.9Reg 3(1)(j) Claims and Payments Regulations