A look at the journey from sickness benefits - such as ESA and UC (for limited capability as you start to feel ready to ease back into work. Starting with "permitted work" that you can do while still claiming ESA, ESA back into work, taking next steps with tax credits, seamless segues and new complexities under UC and the impacts for those crucial disability benefits such as DLA and PIP.
Welcome to part three of a series of five blogs about “sickness" benefits, when feeling too unwell to work:
- In Part 1 - we took a look at how “sickness route benefits are changing and how they fit into the benefits system and took a more detailed look at Statutory Sick Pay.
- In Part 2 - we looked at ESA and Universal Credit (for those with “limited capability”) how it works, how to claim it and the exemption from the full Work Capability Assessment that applies when “awaiting, receiving or recovering” from cancer treatments
In this third part, I take a look at the continued support that can be available as you take gentle steps to ease back into work – whether that be from continued entitlement to ESA and/or UC – or moving from ESA to Working Tax Credit within the legacy system or adjusting within UC under the new system. But whether you are under old or new systems for means tested support, DLA and PIP is not based on your work capability at all and can be an important support, both as you start to move back into work and even if you become re-established in well paid, full time work.
If you are on ESA, then you can do some permitted work , which can help and encourage you to dip your toe in the water by allowing you to do some “permitted work” – up to 16 hours a week - to perhaps keep in touch with your old job, keep a business ticking over or as a first step towards building up some hours ahead of a return to work.
- under the old system, once you felt confident to extend to over 16 hours then it was farewell to ESA and hello Working Tax Credit, with hours requirements reduced to 16 hours or more if you are getting DLA or PIP and an extra boost in the sums from an extra disabled worker element.
- under the new system , New style ESA will continue to operate as before, but if you have either a means tested top up or rely entirely on means tested support then it will a slightly different world of Universal Credit.
On the face of it UC is even more keen to support moves into work, but it does not take on board the lessons from past ESA mistakes and can add a few problem areas of its own. The focus of all the blue sky thinking within UC is all about work , but problems do seem to suggest too much reliance on a design that seems to rather stretch previous provisions for temporarily unwell jobseekers further than they were ever meant to go, confuses “sickness with disability and relies on individual discretion of UC work coaches for consistent and safe support into work.
Even knowing you can do some work when on a benefit for sickness, people still often worry whether doing so that will lead to a questioning of whether they are sufficiently unwell to remain on that benefit for sickness. It can feel rather counter-intuitive to be working while on the sick – with possible associations with the informal economy or even fraud.
And a similar concern that is often raised is whether doing any work will undermine those important extra disability benefits such as Disability Living Allowance or Personal Independence Payment -
We pick up the numbering from last time …
7. Working and ESA
7.1 ESA and “welfare to work”
Back in the day - well 2008 - the original concept of Employment and Support Allowance (ESA) was of a kinder, gentler enabling benefit, achieving the desired decrease in numbers over the old "sickness route" benefits, mainly by better supporting people back towards their own goal of getting back into work.
The decrease in numbers for people on the former Incapacity Benefit was to be achieved by ESA offering better support into work when the time was right. ESA was to offer a mix of gentle work related activity, training and support to improve your work readiness and to tackle barriers to a return to work, as health and recovery permitted.
The win-win was to be lower costs of benefit over time and a happier more fulfilled group of ex-claimants making what can be a tricky step – after a long time being off- sick of getting back into work. in paid work.
From around 2010 new thinking aimed to cut numbers at a much faster rate. The existing medical test – the tightest among OECD countries – was tightened further still; it was decided to apply this test to all existing claimants not just new ones; throwing people off ESA and leaving it to JSA advisers to pick up the pieces. A
Both Governments and the media trumpeted large numbers of new and existing claimants being found “fit for work”, leaving the nasty implication that they had robustly tackled wrongful claiming - affecting the dignity and self-esteem of claimants involved and the public mood on welfare.
Such talk was of course nonsense - no one had been found “fit for work” but simply of not having been sufficiently unwell to reach the new arbitrary goalposts of ESA’s new tests. Jobcentre staff have often, realising the huge barriers facing by the new stream of by no means always walking wounded coming through their doors , have often quietly handed over appeal forms and where to get help, to people failing the ESA test. And currently 60% go on to win that appeal.
The hostile environment approach continues :
- In 2012, much higher levels of sanctions have been imported from Jobseeker's Allowance, into ESA for those who are required to be involved in work related activity and the numbers being hit has doubled.
- The level of savings achieved was nearly doubled simply by pulling the rug of social security from under the feet of a large group of claimants on Contributory ESA by the imposition of an arbitrary 12 month time limit, regardless of health or assessment scores.
ESA then has become a much harsher benefit than original intentions and propositions when Parliament enacted the legislation.
The message then that many people reviving ESA may have picked up is that ESA is much tighter more robust, benefit only for the most poorly; and certainly not for anyone on the margins of being well enough for work.
So, then the idea of working and claiming ESA might seem unlikely and contradictory; rather it may conjure up a world of hobbles and fraud. As the old, simplistic – and now perhaps unlawful mantra of a bad manager or opinionated colleagues might say “you are either too sick to work or you’re not”
The truth for many people recovering from cancer is there is often a grey area where with though, support and reasonable adaptions, work may be managed to some extent while still having some limited capability. And rhetoric and practises aside an award of ESA is still based on you having “limited capability for work, not a total incapacity.
7.2 Permitted work while on ESA
However, one of the big positive changes that remains from ESA since it began in 2008 was to extend the scope of earning something while still claiming ESA You are allowed to work for up to 16 hours and - in 2018/19 - earning up to £125.50 week and still retain your ESA status and payment. The earnings limit though will drop to £20 after a year, unless you are on ESA Support Component, or doing forms of supported work.
Earnings from this “permitted work” are now ignored for both Contributory and Income-related ESA, meaning that you get to feel the full financial benefit regardless of which kind of ESA you get. That exemption also applies in the sums in Housing Benefit and Council Tax Support, so you won’t see those benefits affected by permitted earnings either
Such work might help ease you back into a job, prepare yourself for applying for a job or to keep a business ticking over. It's for when you feel ready and able to try a bit of work, while not yet able to resume normal working hours and pressures.
It is not then just a stark cut off between relying totally on ESA as your basic income or being able to earn enough to support yourself entirely from earnings.
ESA’s approach simplified the previous concept of therapeutic earnings and led to a common work incentive which was both more generous and was the same for everyone. It also simplified the process of starting such work.
Unlike the previous system – and despite the name “permitted work” - you don’t need to get specific formal permission or approval for the work you plan to do before you start it. It is permitted only in the general sense that you are allowed to do so within the 16 hours / £125.50 limits.
It is though probably a good idea to let the DWP know you are starting some work emphasising this is a small step and letting them know about any extra help, support and flexibility involved in making this possible.
This is partly because you have a duty to report any changes that might be relevant but also to protect yourself against misunderstandings by the DWP or neighbours that you are somehow suddenly fully able to work or are wrongly working while claiming to be sick. Letting them know keeps it all above board and clear that this is a little bit of work within limits of your health and the ESA rules.
For some people, with permanent or long term health issues “permitted work “ may be a long term option: learning disabilities, protracted mental health issues or indeed people with cancer facing a longer journey adapting to life saving – but life changing – surgery, managing longer term treatments (e.g. tamoxifen, Herceptin) or still feeling late effects from past surgery and cancer treatments.
There is no formal time limit on how long you can do permitted work for (bar the 1 year drop of that limit to £20 for some “permitted earners”). However, if you were managing a steady settled 15 hours a week at regular hours and without any support, flexibilities or adaptions that could be an issue the next time your ESA was due to be re-assessed. But that timetable would be set at the last time you had a medical and would not – according to ESA be affected by you starting to do some permitted work.
In the short term, doing some permitted work is very unlikely to be an issue in terms of still receiving your ESA, but if this is going to be a longer option for you, it may be worth explaining about the extra help, flexibility and support you need to manage this long term. And the nature of the work, and your state of health would not allow you to extend your hours and earnings; the work might be as much a sort of occupational therapy and supporting a slow recovery as anything else.
7.2 Next steps progressing on to tax credits
There may come a next step in your recovery when you are ready to commit to over 16 hours a week, but not yet ready for full time work, or you are having to start again in a lower wage job. Working Tax Credit (WTC) can then provide a useful next step and give you some support as you come off ESA. WTC helps top up lower income from work, whether this be because you can’t work your usual hours or are not able to earn your usual rate.
If you don’t have children, Working Tax Credit would normally only apply if you are aged over 25 and are working 30 hours a week or more. If you do have children, that age limit goes and the hours minimum drops to 24 (between partners ) if you are one of a couple or 16 hours if you are a lone parent.
However, just as Working Tax Credit can accept you as still being an entitled worker during the first 6 months of your cancer journey, so it can help as you come out the other end too. If you have been on ESA long term immediately before moving into work or if you continue to receive DLA or PIP while in work, then you qualify as a “disabled worker” within tax credit rules.
- the age minimum is down to the basic 16 years for any tax credit claim and
- the minimum hours to qualify is 16 hours, regardless of whether you have children or a partner.
As well as opening up the potential to claim Working Tax Credit, being counted as a "disabled worker" also means that you may get more tax credit than otherwise, as an extra disability element counts in your favour in the calculation . This is worth around £3,000 a year extra in your maximum tax credit, though how much you actually receive in tax credit will depend on get will depend on your income and the effect of tax credit tapers.
The extra “disabled worker element”, then could show up either as an extra amount in your Working Tax Credit, whether by it being the full £3,000 higher or whether it tips into some entitlement when otherwise your income would have been too high. In some cases, you may still be having too much earnings to receive any WTC, but if you are also claiming Child Tax Credit for any children you have, then you might get more there than you otherwise would.
7.4 What if I try those next steps but need to return to ESA ?
It may be that after some limited flexible time with permitted work while on ESA, you then feel able to take the next step and commit to regular work over 16 hours, with or without help from Working Tax Credit. But what if having waved a fond farewell to ESA you find you had been a little over optimistic?
If you need to go back on to ESA within 12 weeks, your claim will be linked to the old one. This means any Contributory ESA will draw on the same National Insurance contributions as your last claim. If you had been on ESA for some time this could be important as a completely new claim might not satisfy that test
You will also return to ESA - Contributory or Income-related - at the rate of ESA you were on. The DWP may consider if your health has changed and whether you need to be re-assessed, but the old rate would continue until any such new assessment was completed.
If you carry on in work beyond12 weeks, then it will be a completely new ESA claim. This will mean that the new ESA claim :
- Could be based on different NI contribution years which could mean you may not qualify for Contributory ESA.
- That you would start again in the assessment phase and only receive the basic rates of ESA until week 14., regardless of whether ESA is happy to take your last assessment or whether they would want to apply a completely fresh Work Capability Assessment
- That in the meantime your area has switched over to the new system so that a fresh claim would be for a mix of New Style ESA and Universal Credit or just one of those two rather than the benefits you left behind.
So, do by all means give it a good go and see how you cope, but do think hard in the run up to 12 weeks, does this feel like a something that feels sustainable long term, or would it be better to step back to ESA and work under 16 hours for now?
There is no limit to the number of times you can benefit from the 12 week linking rule.
8. DLA and PIP while working
The “disability benefits”- Disability Living Allowance and Personal Independence Payment - are about extra non means tested support to help with the additional costs of a long term illness or benefit. They are not based on whether you can work or not, nor whether you are doing no work or are in a full time job.
There is then a clear distinction between “sickness benefits” l- like ESA – to cover the basic living expenses when you have limited capability to work and disability benefits -such as PIP to help with the extra costs of longer term illness or disability, like cancer, whether you can work or not. Often the two go together e.g. as you go through and start recovering from surgery or chemo . But often they may diverge: sometimes the late effects of surgery and treatments mean you have some long term or even permanent new limitations but with some reasonable adaptions you might be fully able to work
So, it may indeed be that moving back into work also coincides with a reduction in the difficulties you have with daily living activities and getting around, but equally it may not. Indeed, sometimes those disability needs increase to meet the challenges and demands of even a supportive workplace, compared with managing quietly at home. Employers and colleagues may be more than happy to find workarounds and make reasonable adaptions to welcome you back into the gang, but an inevitably busier, more challenging day at work might mean that you could do with some help even more frequently throughout the day (for DLA) or score even more points (under PIP)under PIP.
The DWP have promised to no longer suspend PIP/DLA for people coming off ESA just in case you might not be entitled. Rather they have switched to a gentler enquiry first approach to see what health changes might be relevant if you were to come off ESA or relinquishing limited capability status within UC. Does this coincide with a material difference in your limitations in relation to DLA or PIP? Whether that be they have lessened or actually increased with the welcome challenge of getting back into work?
They may seek other information and will then decide if they feel there is a change that triggers a need to fully review your claim . If so, then a pre review enquiry form might follow if you are still on “working age” DLA or a PIP review form may follow.
Doing permitted work within ESA or doing some work within UC “limited capability status will not attend to trigger DLA/PIP’s interest. It would be more likely if you cease to have limited capability whether by departing from ESA or switching within UC that might raise the possibility.
But even then, your detailed explanation if your needs have remained broadly similar may satisfy them without matters going further. If they feel a full review is required, then that might involve an invitation to claim PIP if you are still on “working age” DLA or a fresh PIP2 How your disability affects You form if you are on PIP already. Anyone on working age DLA would receive that invitation anyway by October 2018.
If you are on DLA/PIP via the special rules, then re-evaluating criteria is of course irrelevant as you qualify on medical grounds alone. If you wish to carry on working for now there can be no issue about your entitlement
If you were over pension age at 8thApril 2013, then you will stay with DLA and any review would be within that
16% of all DLA claimants are in full time work, and the logic of welfare to work and integrating people with health issues and disabilities into work and society is that this proportion may well increase. Don’t then go thinking that moving into work means your DLA or PIP stops. In fact, if anything these benefits are also intended to help you on that very journey by providing another financial bridge into work when reduced earnings capacity, the roll off of other benefits and the extra costs of doing so may be putting up barriers to work.
9. So what happens under Universal Credit?
Most of the excitement and transformational powers is associated with UC’s main experience to date as a sort of extended version of JSA with digital knobs on . There can be some problem areas both in the design and implementation of UC for people with limited capability for work
9.1 The good bits:
- UC extends some of the advantages of Working Tax credit to all doing some work. Life is simpler as there is no big leap from under 16 hours on ESA and over 16 hours on tax credits and /or back again. You don’t have to make new benefits claims as you switch.
- If you are receiving PIP, then you can retain your limited capability status – and that extra payment – as you move into work, so you may not need a new test as your hours went up but then came down again
- There is a work allowance that means the first £198 of earnings are ignored – and oddly the first £409 if you don’t get help with your rent
- You don’t automatically lose your “limited capability status for going over 16 hours and retain it, which is rather important given that UC has no equivalent of tax credit’s disabled worker element.
9.2 The not so good bits
- The amounts of income that is ignored by work allowances compare rather poorly with either ESA permitted work limits or WTC income thresholds which both come within the region of £500 a month
- Retaining your limited capability status as hours increase would be great, but if you were coming onto UC fresh as a disabled worker or were being re-assessed, it might be rather hard to pass a Work Capability Assessment on the way to a perhaps full time job.
- The problem arises from UC’s confusion between “sickness and “disability” in the perhaps over hasty simplification that puts any additional help for both into what was previously ESA’s Support Component. The result is a real issue for the many disable people who contribute as parents, carers, volunteers, jobseekers and workers.
- There is no distinct “permitted work” category that offers you a sort of protected status when you’re working knowing that working will not trigger a fresh assessment UC can trigger a new assessment anytime it pleases
Essentially it all depends on support and appropriate use of discretion by your UC work coach who may be fully supportive up to a point, but whose background will have been largely working with jobseekers.
It’s a bit like being back in their hands as at the start of a UC claim when you may be potentially treated as a full time worker until your “limited capability” is established
A sensible work coach – if fully aware how far they can go in reducing or even switching off entirely any such work requirements – can ensure things are adjusted appropriately and actually be a great asset in achieving your goal. But an inexperienced, less well trained work coach struggling to make the switch from a past mainly dealing with fit jobseekers might question your ongoing “limited capability” far too early and have the potential to do great harm.
There are then incentives and support to encourage you to dip a toe in the water of work quite respectably and legitimately while initially still claiming on grounds of sickness or making a seamless segue into in work support. That might be:
- under the old system, from permitted work under ESA to in work support in tax credits and thence to full time good earnings with neither; or
- under the new system this all taking place seamlessly within Universal Credit and / or a continuing involvement from “New Style ESA” , again until any need for support ceases.
However, at every stage , it may well be that you remain entitled to have DLA and PIP remaining by your side even when you do make it fully back into work .
There is though always that nagging doubt around the potential contradiction between receiving health related benefits and doing some work. And “common sense” misperceptions around this whether by people claiming benefits themselves or UC work coaches could get in the way.
Now if your ESA / UC (with limited capability) is currently based on the common exemption of being treated as passing the test while “awaiting, receiving or recovering” from major treatments or the less common one of advanced and potentially life-limiting cancer, then any work you want to do is not problematic because you are not needing to prove your limited capability for work at the same time.
The issue is more when your “limited capability" status relies on the full WCA assessment, where you need to show sufficient limitations – and score enough points – to have that status. And that can start to apply:
- if you are unwell, but on a watch and wait regime,
- in recovery when you are over the immediate side effects of treatments but might be left with a range of “late effects” and still feeling unwell: e.g. the delayed psychological and emotional impacts of it all, the ongoing impacts of other health issues possibly aggravated by the cancer and its treatments, or the ongoing effects of long term cancer treatments (e.g. tamoxifen) that don’t exempt you from the ESA test.
Then you undergo the full assessment and points score for your day to day limitations. It might then fell a more of a worry and a possible contradiction to try work, lest it undermine your case for continuing with the benefit for sickness.
But hopefully this blog may help to clarify that while there are no guarantees, there isn’t seen to be an inherent contradiction between the two :
- with ESA there is a bit of a ringfence around permitted work so certainly in the short term it is unlikely to be an issue
- And there is no assessment process if you move into tax credits and go over 16 hours a week.
- PIP meanwhile is not directly linked with work capability anyway, so is less likely to attract any attention or question marks and if it does may go no further than an initial enquiry
- Universal Credit possibly can feel a bit less clear in what is inevitably a grey area. There is still that notion of it being a good thing to try moving into work and some financial incentives to give work a try, so UC remains supportive in theory. It is just the lack of a clear equivalent to that distinct ESA “permitted work” category and the rather eccentric approach as you progress into more hours, that can make it feel less “safe” as UC stretches the apparent contradiction between work and limited capability too far. too far. It may be that too much rests on you finding a good UC work coach able to work with a benefit with some design issues based on extending what were allowances made for temporarily unwell jobseekers beyond
You may then want to talk through any particular concerns around easing back into work with an adviser in your nearest Maggie’s Centre find your nearest centre here.
Speaking of seamless segues, next time I will move on to look at just what that full Work Capability Assessment involves and what a ”limited capability” that relies on that full points assessment means. And in doing so, suggest ways of fully explaining your difficulties to maximise the chances of you getting a fully informed and fair outcome.
Problem can start with people often underestimating the level of relevant limitations they face, which then gets compounded by misunderstandings along the way. While many people do get what they feel is the right and fair outcome from this process, the high appeals success rate suggests that all is not right with that assessment.
But hopefully, together we can help avoid the need to go that far and do involve a benefits advisor in helping you with that assessment.