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Incapacity Benefit

CONTENTS

Introduction

1. Who can claim?

2. Rates of benefit

3. Pathways to work

4. Work

5. Appeals

6. Benefit fraud

9. Further information

10. Appendix

 New benefits and tax credit rates from 6 April: http://www.lawcentreni.org/EoR/benefits-and-tax-credits/436-benefits-and-tax-credits-rates-2014-15.html

 

INTRODUCTION

Incapacity Benefit is a contributory benefit for people who cannot work because of the nature of their health. A non-contributory version of Incapacity Benefit may be available to young people who became incapable of work in youth (see 1.4 for further information).

Whether a person qualifies for Incapacity Benefit involves an objective test to determine her/his incapacity for work. Actual ability to do real jobs is not considered, nor are non-medical factors (eg ability to read, write, educational standards etc). The test involves assessing a person’s state of health by considering her/his incapacity for work in eighteen functional areas (see Appendix 1.A.4: Incapacity Benefit Schedule).

Rules on or after 27 October 2008

On 27 October 2008, Employment and Support Allowance (ESA) replaced Incapacity Benefit as the principal benefit for a person making a new claim because of a limited ability to work due to the nature of her/his health.

A person who was already in receipt of Incapacity Benefit on 27 October 2008 will remain on Incapacity Benefit (so long as s/he continues to satisfy all the rules of entitlement) until arrangements are made to transfer her/him to ESA, which the government  started to do from October 2010 and hopes to complete by 2014.

In the interim, a person who continues to receive Incapacity Benefit will continue to have her/his claim assessed under the Incapacity Benefit rules and regulations. However, from February 2011, the ESA Work Capability Assessment (WCA) has been applied in re-assessments of claims instead of the Personal Capability Assessment (PCA).

It is still possible to make a new claim and qualify for Incapacity Benefit but only in the limited circumstances listed below. If these circumstances do not apply to a claim for Incapacity Benefit after 27 October 2008 then the claim is treated as a claim for ESA.

It is important to check whether these exceptions apply as the disability test for ESA is more difficult to satisfy than that for Incapacity Benefit.

A person can make a new claim, and qualify for Incapacity Benefit on or after 27 October 2008 if:

  • s/he is entitled to Income Support on grounds of illness or disability;
  •  the claim can be linked to a previous Incapacity Benefit claim on the grounds that:
    • s/she has been a welfare to work beneficiary; or
    • the period of incapacity for work can be linked to an earlier period no more than eight weeks before.

Where a person makes a claim for ESA and the above rules apply then the decision maker will treat the claim as a claim for Incapacity Benefit.

 

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1. WHO CAN CLAIM?

A person making a claim for benefit due to her/his health is no longer able to claim Incapacity Benefit.  Instead s/he must claim ESA. Therefore, all the information below refers to previous claims and no new claims can now be accepted.

To qualify for Incapacity Benefit, a person must:

  • have been entitled before 27 October 2008 or have made a claim relating to a period before 27 October 2008 or linked to an earlier Incapacity Benefit claim, or be entitled to Income Support on disability grounds; and
  • be incapable of work; and
  • be in a period of incapacity for work (PIW); and
  • have made a claim and submitted evidence of incapacity; and
  • be sixteen or over; and
  • be under pensionable age (but see below); and
  • have no entitlement to Statutory Sick Pay (SSP); and
  • satisfy the contribution conditions (see section 1.3), unless incapable of work in youth (see section 1.4).

Benefit is normally only payable after three waiting days and is paid fortnightly in arrears. A person who receives Incapacity Benefit because of incapacity for work in youth does not have to serve these waiting days.

Incapacity Benefit is not means-tested. However, entitlement to it may be affected by any personal, occupational or public service pension a person receives. Other income and capital is ignored.

1.1 Pensionable age

To qualify for Incapacity Benefit, a person must usually be under pensionable age. A man’s pensionable age is 65. Until 6 April 2010, a woman’s pensionable age was 60. Between 6 April 2010 and 6 April 2018, pensionable age for women will rise gradually to 65. A woman’s pensionable age will depend on her date of birth.

A person who has deferred her/his retirement or has de-retired may qualify for short-term rate Incapacity Benefit so long as s/he is no more than five years over pensionable age. A person over pensionable age is not entitled to long term rate Incapacity Benefit. For information about the rates of benefit, see section 2.

1.2 Period of incapacity for work

A period of incapacity for work begins when a person has been unable to work for four or more consecutive days. The first three days (sometimes called waiting days) will not normally count as part of a period of incapacity for work unless there is a link with a period of entitlement to SSP.

1.2.1 Linking periods

Two or more periods of incapacity separated by eight weeks or less (104 weeks for welfare to work beneficiaries and for certain exceptional cases) are linked together to form one period of incapacity.

A person is not entitled to Incapacity Benefit for the periods between linked periods of incapacity for work, but if periods are linked in this way:

  • s/he will not have to serve a further three waiting days;
  • the issue of whether contribution conditions are satisfied will not be reconsidered;
  • earlier periods of entitlement to Incapacity Benefit will be considered when deciding the date when s/he qualifies for the higher rate of short term Incapacity Benefit or long term Incapacity Benefit;
  • s/he can continue to qualify for Incapacity Benefit on the grounds of incapacity in youth if s/he initially qualified on this basis and still has not paid or been credited with enough National Insurance contributions to qualify otherwise;
  • s/he will continue to have her/his claim considered under the Incapacity Benefit rules and not the ESA rules (applies to both eight and 104 week linking rules).
1.2.2 104 week linking rule

In certain circumstances, a person with an entitlement to the disability element of Working Tax Credit (WTC) or who stopped work before 7 April 2003 and was entitled to Disabled Person’s Tax Credit in the week which s/he stopped work can link periods of incapacity separated by up to 104 weeks.

This applies when a person:

  • was in full time paid work and claimed Incapacity Benefit after stopping this work; and
  • was incapable of work on the day after s/he stopped work; and
  • was previously entitled to the higher rate of short term Incapacity Benefit or long term Incapacity Benefit at some time in the two year period ending with the day after s/he finished work; and either:
    • was entitled to the disability element of WTC on the day before stopping work; or
    • would have been but for the fact that the household’s income was too high; and
  • was paid WTC or the child, disabled or severely disabled child element of Child Tax Credit (CTC) for the day before s/he stopped work; or
  • claimed Incapacity Benefit on or before 6 April 2005 and the day before s/he stopped work was before 7 April 2003 and was in a week in which s/he was entitled to Disabled Person’s Tax Credit.

The 104 week linking period will also apply where a person:

  • was on a training for work course; and
  • was entitled to higher short term rate of Incapacity Benefit or long term Incapacity Benefit at some time  during the eight weeks prior to starting training; and
  • was incapable of work on the day after the training stopped; and
  • the training stopped within two years of the last day s/he was entitled to Incapacity Benefit.
1.3 Contribution conditions

There are two contribution conditions for Incapacity Benefit.

Persons incapacitated for work in youth are exempt from the following contribution conditions.

1.3.1 First condition

A person must have paid Class 1 or Class 2 contributions on earnings equal to or greater than 25 times the year’s lower earnings limit in one of the last three complete tax years before the relevant benefit year, or 25 flat rate contributions paid before 6 April 1975. A benefit year is the same as a calendar year and runs from the first Sunday in January.  The tax year runs from 52 weeks from early April of each year. There is a relaxation of this rule so that sufficient contributions paid in any one tax year will be enough where a person was:

  • entitled to Carer’s Allowance (CA) in the last complete tax year before the benefit year when s/he became incapable of work even if it was not paid because of the overlapping benefit rules; or
  • working and entitled to Disability Working Allowance (DWA) or Disabled Person’s Tax Credit  for more than two years before becoming incapable of work (these benefits have been abolished); or
  • in receipt of Incapacity Benefit in the last complete tax year before the benefit year of the new claim; or
  • entitled to contribution credits because s/he had been in prison or detention centre and the conviction was subsequently quashed by the courts; or
  • working for more than two years and entitled to the disability element or the severe disability element of WTC immediately before becoming incapable for work.
1.3.2 Second condition

In each of the two tax years before the start of the benefit year in which the period of incapacity begins, a person must have paid or been credited with Class 1 or Class 2 contributions on earnings of 50 times the lower earnings limit for that tax year.

1.4 Incapable of work in youth

There is special provision for young people aged sixteen to nineteen (extended to 25 in certain circumstances) to qualify for Incapacity Benefit without having to meet the necessary contribution conditions outlined above.

1.4.1 Aged under 20

A person aged under 20 could qualify for Incapacity Benefit before 27 October 2008 even if s/he had not paid enough National Insurance contributions, provided s/he:

  • had been incapable of work for 196 consecutive days; and
  • was under 20 when the period of incapacity for work started and claimed within three months of the end of the 196 day period; and
  • satisfied residence and presence conditions; and
  • was not a person subject to immigration control; and
  • if under nineteen, was not in full time education.
1.4.2 Aged 20 to 25

A person aged 20 or over but under 25 could qualify for Incapacity Benefit before 27 October 2008 even if s/he had not paid enough National Insurance contributions, provided s/he satisfied the following conditions.

S/he must have been incapable of work for 196 consecutive days and, in addition to the main conditions described in 1.3.1, must be in education, or on vocational or occupational training which:

  • began at least three months before s/he reached the age of 20 and s/he attended within an academic term of registering; and
  • ended either:
    • immediately before the day s/he is entitled to claim Incapacity Benefit; or
    • on a day falling within one of the last two complete tax years before the benefit year in which a claim was made, whichever is the later (see 1.3.1 for details when a benefit year begins).
1.5 Day of incapacity

A day of incapacity is a day when a person is treated as or assessed as incapable of work. Certain categories of people are deemed to be incapable of work or are exempt from the assessment of incapacity.

1.5.1 Deemed incapacity

A person will be deemed to be incapable of work:

  • where under public health legislation s/he is excluded, prevented or abstains from work because s/he is a possible carrier of an infectious or contagious disease (or has been in contact with a person with such a disease); or
  • where s/he is receiving inpatient treatment (including nursing) at a hospital or in a ‘similar institution’; or
  • on days when s/he is receiving plasmapheresis, parenteral chemotherapy, or radiotherapy treatment or regular weekly renal dialysis or total parenteral nutrition treatment (in such circumstances the four day definition of period of incapacity for work is reduced to two days); or
  • on days when she is pregnant and there would be a serious risk to her health or her baby’s health:
    • when the own occupation test applies to her, if she continues to work in her own occupation; or
    • when the personal capability assessment (PCA) applies (or from 2010, the Work Capability Assessment (WCA), if she works in any occupation; or
  • if she is pregnant or has recently had a baby; and
    • she would not be entitled to either Maternity Allowance or Statutory Maternity Pay if she were to make a claim; and
    • she is within the period beginning with the first day of the sixth week before the expected week of childbirth (or beginning with the actual day of childbirth if that is earlier), and ending on the fourteenth day after the date she had the baby; and
    • she has a medical certificate giving the expected date of childbirth or the actual date of childbirth; or
  • if s/he is a ‘welfare to work’ beneficiary, in which case s/he can be treated as incapable without having to satisfy the own occupation test or PCA for up to 91 days if:
    • in her/his last period of incapacity for work s/he was either assessed under the PCA (or all work test) and found to be incapable of work, or s/he was exempt from the PCA; and
    • s/he submits a medical certificate to the Department for Social Development (DSD) confirming that s/he is incapable of work; and
    • the days fall within the 104 week linking period or within the first thirteen weeks after the end of the 104 week linking period.

The 91 days do not need to be consecutive and so can be separated by days when s/he works or is not incapable of work.

1.5.2 Exempt groups

A person is exempt from the PCA if s/he falls into one of the following categories:

  • was receiving Severe Disablement Allowance (SDA) on 12 April 1995 and the spell of incapacity for work has continued since then and s/he continues to send medical certificates to the DSD; or
  • is assessed as at least 80 per cent disabled for the purposes of SDA; or
  • receives the highest rate of the care component of Disability Living Allowance (DLA); or
  • is terminally ill; or
  • is registered blind; or
  • has tetraplegia, paraplegia (including uncontrollable involuntary movements or ataxia which render a person functionally paraplegic) or dementia or is in a persistent vegetative state; or
  • is getting Disablement Benefit based on an assessment of at least 80 per cent disablement; or
  • is getting Constant Attendance Allowance paid at a rate which is higher than the ‘lower weekly rate’; or
  • there is medical evidence to show that s/he has:
    • a severe learning disability involving severe impairment of intelligence and social functioning caused by the arrested or incomplete physical development of the brain or severe brain damage; or
    • a severe and progressive neurological or muscle wasting disease; or
    • an active and progressive form of inflammatory polyarthritis; or
    • progressive impairment of cardio-respiratory function which severely and persistently limits effort tolerance; or
    • dense paralysis of the upper limb, trunk and lower limb on one side of the body; or
    • severe irreversible motor sensory and intellectual deficits from the multiple effects of impairment of function of the brain or nervous system; or
    • a severe and progressive immune deficiency state characterised by the occurrence of severe constitutional disease, opportunistic infections or tumour formation; or
    • a severe mental illness which severely and adversely affects her/his mood or behaviour and which severely restricts her/his social functioning or awareness of her/his immediate environment.

The medical evidence could be:

  • evidence from a Medical Support Services (MSS) doctor; or
  • evidence from any other doctor, a hospital or a similar institution; or
  • parts of such evidence which are most reliable in the circumstances.
1.6 Incapacity for work

There are two tests of incapacity for work.

In the first 28 weeks of a period of incapacity, a person’s incapacity is assessed by reference to her/his ability to perform her/his own current occupation, if s/he has one.

After 28 weeks or in the absence of a current occupation, the test of incapacity changes and s/he is assessed by reference to the Personal Capability Assessment (PCA).

1.6.1 Weeks 1 to 28: own occupation test

This is a test of whether a person is incapable by reason of some specific disease or bodily or mental disablement of doing work which s/he could reasonably be expected to do in the course of the occupation in which s/he was engaged.

To be assessed on the basis of the own occupation test, a person must have been, in the last 21 weeks, in one occupation for more than eight weeks, working for sixteen hours or more per week.

Where a person has had more than one occupation in the past 21 weeks, in determining how to apply the own occupation test, then:

  • if in a series of occupations, the last one s/he had before claiming is looked at;  or
  • if in several occupations at once, s/he must satisfy the own occupation test in each job.

All work done for the same employer counts as one occupation. Jobs of a similar nature are considered as one occupation.

The short-term lower rate of Incapacity Benefit will be paid at this stage if a person satisfies the own occupation test or, where appropriate, the PCA.

1.6.2 Weeks 29 to 52: personal capability assessment

After 28 weeks, or from the start of the claim if the own occupation test does not apply, the PCA is used to assess incapacity for work.

The short term higher rate will usually be paid from week 29 if s/he passes the assessment (see 2.1.1 for exceptions).

A person will be treated as satisfying the PCA up to such time as s/he can be medically examined.

1.6.3 Weeks 53+

Long-term rate of Incapacity Benefit will normally become payable.

The PCA, as a test of incapacity, will continue to apply. A person will be recalled from time to time for a reassessment of whether s/he continues to satisfy the PCA (or from 2010, the WCA).

A disallowance of benefit following a previously successful PCA will have to be based on supersession grounds (eg there has been a relevant change of circumstances).

1.6.4 Medical evidence

The following medical evidence will generally be required to support the claim:

  • during the first seven days of a period of incapacity the DSD generally accepts self certification of sickness;
  • after seven days a person must provide a GP’s medical certificate or such other evidence as the DSD finds to be relevant.
1.7 What is the personal capability assessment?

The PCA is a test of the extent to which a person who has a specific disease or bodily or mental disablement is capable of performing basic tasks of daily living which are set out in legislation.

The Incapacity Benefit Appendix sets out the legislative test. The test consists of fourteen groups of physical activities and four groups of mental activities (called descriptors).

A person is assessed under each type of activity and given a score based on her/his limitations. To satisfy the test a person must score sufficient points. A person must score either:

  • 15 points from the physical activities list; or
  • 10 points from the mental activities list; or
  • 15 points if combining scores from both the mental and physical activities lists. In this case, a score of less than 6 for mental activities counts as 0 and a score of between 6 and 9 for mental activities counts as 9.
1.7.1 General principles in assessment

It is possible to score points in respect of one descriptor within each physical activity. The highest scoring applicable descriptor will be selected. However, points will be awarded for every mental descriptor satisfied.

It is not possible to score points for both activity 1 ‘walking’ and activity 2 ‘stairs’. The highest descriptor from these activities will be counted.

1.7.2 Part I: physical health

The fourteen physical activity groups are each divided into a number of descriptors. Each descriptor is given a score of points ranging from 0 to 15. Incapacity is determined by totalling the number of points scored for each descriptor.

If the aggregate score from physical descriptors is 15 or more, a person will be found incapable of work. The 15 points can come from a mixture of the functional areas; they do not have to come from any single area. However, in order to be awarded a score under Part I of the Schedule, the disability must arise from a physical condition.

The various physical descriptors are set out in the Incapacity Benefit Appendix. An example is that someone who cannot walk more than 200 metres without stopping or severe discomfort would score 7. If the same person could not pick up and carry a two and a half kilogram bag of potatoes with either hand, s/he will score 8 points. The two scores added together make 15 and the person would pass the PCA.

1.7.3 Part II: mental health

If a person is certified as having a severe mental health problem, then no PCA questionnaire will be issued. Instead, the GP or hospital will be asked for confirmation of the diagnosis which is sent to the MSS for an opinion. If the MSS agrees with the diagnosis, the decision maker will treat the person as being incapable of work.

A person with mild or moderate mental health problems and physical or sensory disabilities which impact on cognition and/or mental alertness will be sent a questionnaire to fill in to identify any physical disabilities, but there will be no self-assessment on mental health. Instead, s/he will be sent for an interview with a health care professional.

At the interview, s/he will be asked a series of questions relating to mental health descriptors. The various mental health descriptors are set out in the Incapacity Benefit Appendix.

The threshold for incapacity for work arising from mental health problems is set lower than for physical health at 10 points.  The points scored for mental health descriptors are also lower, either 1 or 2. However, unlike physical health descriptors, mental health scores within activity groups can be added together (ie it is not just the highest score within the activity group that counts) as well as between activity groups.

1.7.4 Assessment process

The process for assessing a person’s score on the PCA is as follows.  A person will be asked to complete a questionnaire which relates to the functional areas. S/he will tick the boxes and provide additional information that best describes the difficulties caused by her/his illness. The questionnaire is returned to the decision maker.

1.7.4.1 Failure to return a questionnaire

Completing and returning the questionnaire as fully as possible is very important. If the questionnaire is not returned, a further questionnaire will be sent out after at least four weeks.  If this is not returned a person will be treated as capable of work and her/his benefit will stop unless s/he is found to have good cause for failing to return it.

A person cannot be treated as capable of work because of failure to provide the information unless at least six weeks have elapsed since the first request and a second request was made at least four weeks after the first. Further, s/he must be given at least two weeks to respond to the second request. However, s/he will not be treated as capable of work under this rule if s/he can show good cause for failure to return the questionnaire.

1.7.4.2 Medical examination

If the decision maker is satisfied that there is sufficient evidence of incapacity for work on the questionnaire, benefit will be paid.

However, where a question arises as to whether a person is incapable of work, s/he will be asked to attend a medical examination.  This will be conducted by a health care professional who is a registered medical practitioner, a registered nurse, a registered occupational therapist or physiotherapist.

No-one will be deemed capable of work without being offered a medical examination.

Guidance issued to decision makers states that if a person has been diagnosed as having mental health problems and s/he has not returned the questionnaire, it is not appropriate to decide that s/he is capable of work. Instead the decision maker may refer the case directly to the MSS for a medical examination.

A person who fails to attend a medical examination will be treated as capable of work. S/he must have received written notice of the time and place of the examination at least seven days beforehand. However, a person cannot be treated as capable of work under this rule if s/he can show good cause for failure to attend an examination.

Following the examination, the health care professional will prepare a report.  This will be put before the decision maker together with the person’s questionnaire and any other relevant information. The decision maker will then make the decision on incapacity for work and therefore entitlement to benefit.  It must be emphasised that, although the health care professional can give an opinion on a person’s medical condition, s/he will at no point make a decision on capacity for work.  This will always be the decision of a decision maker.

Note: Benefit continues to be paid (and increased without risk of overpayment) until a decision is made about a person’s incapacity. No-one will be found capable of work without being offered a medical examination.

1.7.5 Exceptional circumstances

If a person does not satisfy the PCA, s/he can still be deemed incapable of work if the decision maker decides that one of the following 'non functional' incapacities apply in that s/he:

  • suffers from a previously undiagnosed, potentially life-threatening condition;
  • suffers from a severe uncontrolled or uncontrollable disease;
  • will have a major surgical operation or other major therapeutic procedure within three months of examination carried out by the doctor;
  • suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if s/he were found capable of work.

In making the decision, the decision maker can refer to the health care professional’s opinion and the opinion of other doctors, such as a GP or consultant.

 

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2. RATES OF BENEFIT

There is no additional earnings related pension for a person claiming Incapacity Benefit. Incapacity Benefit is taxable after week 28.

2.1 Basic benefit
2.1.1 Under pension age

Basic Incapacity Benefit consists of three rates.

Short-term lower rate

weeks 1 to 28                                                              £76.45

Short-term higher rate

weeks 29 to 52                                                            £90.50

Long-term rate

weeks 53+                                                                   £101.35

A person who is terminally ill and/or in receipt of DLA high rate care component will go on to long-term Incapacity Benefit at week 29.

2.1.2 Over pension age

Short-term Incapacity Benefit is payable for up to 52 weeks after pension age, as long as incapacity began before retirement age.

Short-term lower rate £97.25

Short-term higher rate £101.35

2.2 Age allowance

There are two age allowances paid with the long-term rate after 52 weeks.

Under 35 when incapacity began                              £10.70

Between 35 and 44 when incapacity began             £6.00

2.3 Increase for child dependants

Increases for dependent children were abolished on 6 April 2003.  They have been replaced with CTC which is a means tested benefit. An increase for child dependant can now not normally be made.

However, transitional protection is given to those who were receiving an increase for a dependent child before 6 April 2003.  Entitlement to the child dependant increase will continue if a person was entitled to such an increase on 5 April 2003 (or s/he claimed an increase after 6 April 2003 and her/his entitlement was backdated to include the day 5 April 2003). The increases are paid at a rate of £11.35 for the oldest eligible child and £8.10 for each additional child.

In claims with transitional protection, increases for children can be lost when the spouse/civil partner or partner of the person claiming Incapacity Benefit earns more than a set amount. An increase for the first child is not paid if the spouse/civil partner/partner earns £220 or more in the previous week. One further increase is lost for every additional £29 earned above £200.

A person’s transitional protection will be lost if her/his entitlement to the child dependant increase ceases or the increase stops being paid for a period of more than 58 days. Transitional protection will continue if Incapacity Benefit is awarded to the person again and s/he reclaims the increase within three months of the date the benefit is re-awarded on revision, supersession or appeal.

A person with a child or qualifying young person who claims Incapacity Benefit should also claim CTC.

Note: From 6 April 2006, for CTC purposes, a child is anyone under sixteen and a qualifying young person is a person under nineteen in full-time non advanced education or approved unwaged training, or a person under 20 in full-time non advanced education or approved unwaged training started before turning nineteen and who reached the age of nineteen on or after 6 April 2006.

2.4 Increase for adult dependants

An adult dependant increase may be payable for a dependent spouse or civil partner, or for an adult who looks after the person’s child, but not for both. It is necessary to make a separate claim for an adult dependant increase. The earnings and certain pension payments of the spouse/carer must not exceed set limits. The increase might not be paid (or might not be paid in full) if the dependant is getting certain benefits in her/his own right.

It is paid at three rates.

Short-term rate

person claiming under pension age                           £45.85

person claiming over pension age                             £56.65

Long-term rate                                                        £58.85

2.4.1 Earnings rules

The adult dependant addition is lost when the dependant earns more than the standard rate of the increase.

If the person claiming benefit receives long-term Incapacity Benefit, then the addition is lost where the dependant’s earnings are above £71.70 per week unless the person has been continuously entitled to an increase in the same benefit since 14 September 1985, in which case more generous rules apply.

As the earnings rule is more generous for long term than short term Incapacity Benefit, a person may not be entitled to an adult dependant increase until s/he transfers on to long term Incapacity Benefit. It is then necessary to make a separate claim for it at that time.

Earnings include payments from an occupational or personal pension scheme.  The following earnings are ignored:

  • earnings for ‘approved work’ (see section 4.1) where a spouse/adult dependant is treated as incapable of work;
  • the dependant’s earnings for child minding, where the person claiming is paying the adult dependant for caring for a child.

If the dependant’s earnings fluctuate, the DSD must be informed and no increase will be paid for any week in which the dependant’s earnings exceeded the relevant limit in the previous week. However, the claim for the increase is not ended by fluctuations.

Note: All previous recipients of Invalidity Benefit and Sickness Benefit were transferred to Incapacity Benefit on 13 April 1995. As regards their benefit rates, they have transitional protection and their benefit remains non-taxable. The earnings related addition of their Invalidity Benefit is not, however, uprated annually.  It remains frozen at the rate it was prior to 13 April 1995.

2.5 Reduction for pension payments

If a person's entitlement to Incapacity Benefit starts on or after 6 April 2001, her/his benefit may be reduced if s/he receives one of the following at over £85 gross per week:

  • personal pension;
  • occupational pension;
  • public service pension;
  • the Pension Protection Fund and if becoming entitled to it on or after 27 March 2009 the Financial Assistance Scheme;
  • permanent health insurance arranged by an employer which provides payments in connection with ill health or disability after her/his employment ends;

However, if s/he contributed more than 50 per cent of the premiums, the amount s/he receives from this pension will be ignored.

Other types of pension, including one off lump sum payments, are ignored. If a person is entitled to the highest rate of DLA care component, all pension payments are ignored.

If a person has a gross pension of over £85 per week, Incapacity Benefit will be reduced by half of the difference between the pension and £85.

Example

Pension                       £95 per week

Difference                   £95 less £85 = £10 x 50% = £5

The reduction in Incapacity Benefit is £5.

2.5.1 Entitlement to Incapacity Benefit prior to 6 April 2001

Where a person has been continuously entitled to Incapacity Benefit since prior to 6 April 2001, pension payments will not affect Incapacity Benefit entitlement. If the claim is broken but the person later re-qualifies for Incapacity Benefit, pension payments can still be ignored if the periods of incapacity can be linked.

 

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3. PATHWAYS TO WORK

The Pathways to Work scheme is administered by the Department for Employment and Learning through the Jobs and Benefits offices located throughout Northern Ireland. This scheme applies to people claiming certain benefits on the basis of incapacity for work, including Incapacity Benefit and ESA.

A person making a new claim for Incapacity benefit on or after 3 October 2005 who is at least eighteen and under the qualifying age for Pension Credit is required to:

  • nattend a first work focused interview eight weeks after the claim is made;
  • attend a sequence of five further work focused interviews at monthly intervals;
  • prepare or update a work action plan as part of the interview.

Similar requirements apply to a person with an existing claim, that is a claim made on or after 3 October 2003 but before 3 October 2005, except that the first interview will take place as soon as practicable and s/he is required to attend a sequence of two further work focused interviews at monthly intervals instead of five.

A person may also be required to take part in additional interviews at given points during the period of an award. Failure to attend and/or take part in an interview without good cause will result in a benefit sanction of 50 percent of the amount of the work related activity component for the first four weeks (ie £14.22) then 100 percent of the amount of that component ie £28.45for every week thereafter until the person attends the interview.

The requirement to take part in an interview may be waived or deferred if it is deemed that an interview would not be of assistance or appropriate to the person.

A person who made a claim before 27 October 2008 is not required to take part in the sequence of five monthly interviews if s/he is exempt from the PCA because of a severe condition (see section 1.5.2). A person with an existing claim is not required to take part in any interview if s/he is similarly exempt from the PCA.

Extra financial support is also available to certain people.  The Return to Work Credit is a tax free payment of £40 per week for up to 52 weeks for certain people who return to work for at least sixteen hours a week and earn up to £15,000 per year. The Pathways personal adviser can also access a discretionary fund to help support return to work activity.

3.1 Appeals

A decision made to impose a reduction on a person’s benefit or to treat a person as having made no claim for Incapacity Benefit can be appealed. The appeal application will be dealt with by the Appeals Service in the normal manner.

 

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4. WORK

Strict rules limit the work which may be done during a period of incapacity for work. Even if a person has been determined to be incapable of work s/he will be treated as capable of work for any week starting on Sunday in which s/he does any work, regardless of how much work was done or whether the person was paid.  There are exceptions to this rule. See below at 4.1.

A person will be treated as capable of work on the actual days of work rather than for the whole week:

  • where it is the first or last week of the claim; or
  • during any week where the person is undergoing plasmapheresis, parenteral chemotherapy, radiotherapy treatment, regular weekly renal dialysis or total parenteral nutrition treatment.
4.1 Exceptions

The above rule does not apply where the work is:

  • classified as trivial or negligible;
  • ‘approved work’, ie work carried out on a trial basis without pay which has been arranged in writing by the DSD with an employer;
  • the care of a spouse, civil partner, partner, close relative (defined as parent, parent-in-law or step-parent, son, son-in-law, stepson, daughter, daughter-in-law, stepdaughter, brother, or sister, or the partners of any of these), grandparent, grandchild, uncle, aunt, nephew or niece;
  • housework in the home;
  • work to protect someone or prevent serious damage to property or livestock during an emergency;
  • work as a local councillor;
  • work as a member of an appeal tribunal who has experience of disability or as a member of the Disability Living Allowance Advisory Board, but only for a maximum of one day per week;
  • voluntary work (except for a close relative – see above) for which a person is only paid reasonable expenses;
  • permitted work (see section 4.2);
  • work done at the test trading stage of self-employment. Test trading allows a person to try out self-employment for a period of up to 26 weeks.

Note: A person has a duty to report any change in circumstances which may affect entitlement to benefit. S/he will have committed an offence if s/he fails to report a change which s/he knows will affect benefit entitlement. In order to avoid possible allegations of fraud or prosecution, all change of circumstances must be reported in writing to the DSD.

4.2 Permitted work

A person must inform the DSD promptly that s/he is doing permitted work as s/he has a duty to report relevant changes in circumstances. This can be any kind of work subject to the following rules.

The permitted work rules allow a person receiving Incapacity Benefit to work for earnings up to:

  • £20 a week for an unlimited period; or
  • £99.50 a week for 52 weeks if working less than sixteen hours a week on average;
    • after a gap period of 52 weeks, a further fixed period of 52 weeks is available, if earning up to £97.50 and working less than sixteen hours a week. A person can earn up to £20 a week in the 52 week gap period; or
  • £97.50 a week for an unlimited period if exempt from the PCA because of a severe condition (see section 1.5.2); or
  • £99.50 a week for an unlimited period if in supported permitted work or as part of a treatment programme done under medical supervision while a person is in or regularly attending hospital.

‘Supported permitted work’ is work which is supervised by someone employed by a local or public authority or voluntary organisation, whose job it is to find work for people with disabilities.

This could be work done in the community or in a sheltered workshop. It also includes work done under medical supervision as part of a hospital treatment programme.

 

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5. APPEALS

A person claiming benefit has the right to appeal to an appeal tribunal against many decisions of a decision maker. A two-member tribunal (a lawyer and a doctor) hears appeals about Incapacity Benefit. The time limit for appealing is one month from the date of the decision under appeal.

 

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6. BENEFIT FRAUD

Fraud can occur when a person deliberately misleads the DSD, or fails to, or allows another person to fail to notify promptly a change of circumstances that could affect entitlement to benefit. There are two main offences, namely making false representations for benefit and dishonest representations for benefits.

There are three main options available to the DSD in relation to fraud, namely:

  • formal caution;
  • penalty;
  • prosecution.
6.1 Formal caution

Caution is generally used for less serious offences.

A person will be asked to attend a formal caution interview where s/he will be asked to sign a record admitting the offence and accepting the caution.

Accepting a caution means that a person will not normally be prosecuted. The caution may be cited in court where a person is successfully prosecuted for a further offence.

6.2 Penalty

The penalty is 50 per cent of the recoverable overpayment caused by the offence and is added to the amount of overpayment and recoverable in the same way. The penalty cannot be lower than £350 or higher than £2,000.

A person will be sent a notice setting out the broad terms of the penalty and will be invited to an interview to discuss acceptance of the penalty.  S/he does not have to make the decision to accept the penalty at the interview but will be allowed five days to make up her/his mind.

Once a person has entered into an agreement to pay the penalty, s/he will have fourteen days in which to change her/his mind.

Note: Acceptance of a formal caution or penalty will bring immunity from prosecution for the specified offences. However, a person may still be prosecuted for related offences such as a Housing Benefit overpayment.

Acceptance of a formal caution or penalty is an admittance of guilt.  Formal caution or penalty should not be accepted just to avoid prosecution if the person did not commit the offence. A person will not automatically be prosecuted if s/he does not accept the formal caution or penalty. Prosecution will depend on the evidence that the DSD has obtained.

6.3 Prosecution

Fraud is a criminal offence and can result in prosecution. The maximum penalty for these offences is a £5,000 fine or three months in prison or both. This is in addition to repayment of any overpayment that may have occurred.

Where a case is tried on indictment in the Crown Court, the maximum penalty is an unlimited fine or seven years imprisonment or both.

6.3.1 Benefit sanctions

In addition to a fine, imprisonment and recovery of any overpayment, the DSD can apply benefit sanctions.

If a person is convicted of one or more benefit offences in two separate proceedings and one offence is committed within five years of the conviction of another, the DSD will impose benefit sanctions if those offences have not previously been taken into account. This only applies to offences committed after the introduction of the Social Security Fraud Act (NI) 2001 on 1 April 2002.

The sanction period is thirteen weeks and, if sanctioned, a person will lose Incapacity Benefit for this period.

The Welfare Reform Bill before the Assembly is proposing to introduce a ‘one strike’ provision. Where a person is successfully prosecuted or accepts a caution or administrative penalty, then a four week loss of benefit is applied. If a second offence results in a further administrative penalty, caution or first conviction, then a further four week benefit penalty applies. Benefit can be reduced rather than stopped altogether if the claimant or a member of the family is on Income Support, Income-related ESA or if on Income-based Jobseeker’s Allowance and satisfies certain hardship conditions.

No date had been fixed for the introduction of the ‘one strike’ provision.

6.3.2 Other issues

Where a doubt arises during investigation of fraud about a person’s entitlement to benefit, the benefit may be suspended until further information is gathered. This decision cannot be challenged other than by way of judicial review. A person in this situation should supply the information required as quickly as possible and try to persuade the decision maker not to suspend benefit. If this does not work, a fresh claim for benefit should be lodged.

A decision maker may also seek to recover an overpayment once the investigations have been completed. This can be done where the cause of the overpayment is attributable to a failure to disclose information or accidental or deliberate misrepresentation of circumstances.

 

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7. NEW DEAL FOR DISABLED PEOPLE

This is a voluntary programme for people with a disability or long term illness. It aims to help people who are on Incapacity Benefit or Income Support with a disability premium to move into work.

People on these benefits are invited to participate and offered assistance and guidance from a personal adviser. A person can refuse to participate and her/his benefit is not affected.

 

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8. LEGISLATION

Legislation includes:

Social Security (Medical Evidence) Regulations (NI) 1976

Social Security (Medical Evidence) Amendment Regulations (NI) 1976 (as amended)

Social Security (Claims and Payments) Regulations (NI) 1987 (as amended)

Social Security Contributions & Benefits (NI) Act 1992

Social Security Administration (NI) Act 1992

Social Security (Incapacity for Work) (NI) Order 1994

Social Security (Incapacity Benefit) Regulations (NI) 1994

Social Security (Incapacity Benefits Increases for Dependants) Regulations (NI) 1994

Social Security (Incapacity for Work) (General) Regulations (NI) 1995 (as amended)

Social Security (Incapacity Benefits) (Transitional) Regulations (NI) 1995

Social Security Fraud Act (NI) 2001

Social Security Act (NI) 2002

Social Security (Work-Focused Interview) Regulations (NI) 2003

Social Security (Work-Focused Interview for Partners) Regulations (NI) 2003

Social Security (Incapacity Benefit Work Focused Interviews) Regulations (NI) 2008

Social Security (Incapacity Benefit Work Focused Interviews) (Amendment) Regulations (NI) 2009

Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations (NI) 2010

 

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9. FURTHER INFORMATION

Welfare Benefits and Tax Credits Handbook 15th Edition, CPAG, 2013/2014 available from CPAG, 94 White Lion Street, London, N1 9PF, £45.00.

Disability Rights Handbook, 38th Edition, Disability Alliance 2013/2014, available from Disability Alliance, Universal House, 88-94 Wentworth Street, London, E1 7SA, £29.99.

Law Centre (NI) website: www.lawcentreni.org

 

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10. Appendix 1

INCAPACITY BENEFIT SCHEDULE

Disabilities which make a person incapable of work

Part 1: Physical disabilities (only one descriptor in each category counts)

(1)

Activity

(2)

Descriptor

(3) 

Points

1.

Walking on level ground with a walking stick or other aid if such aid is normally used.

1 (a)

Cannot walk at all.

15

1 (b)

Cannot walk more than a few steps without stopping or severe discomfort.

15

1 (c)

Cannot walk more than 50 metres without stopping or severe discomfort.

15

1 (d)

Cannot walk more than 200 metres without stopping or severe discomfort.

7

1 (e)

Cannot walk more than 400 metres without stopping or severe discomfort.

3

1 (f)

Cannot walk more than 800 metres without stopping or severe discomfort.

0

1 (g)

No walking problem.

0

Note: when both walking and stairs apply only one score (the highest) can count.

2.

Walking up and down stairs.

2 (a)

Cannot walk up and down one stair.

15

2 (b)

Cannot walk up and down a flight of 12 stairs.

15

2 (c)

Cannot walk up and down a flight of 12 stairs without holding on and taking a rest.

7

2 (d)

Cannot walk up and down a flight of 12 stairs without holding on.

3

2 (e)

Can only walk up and down a flight of 12 stairs if s/he goes side-ways or one step at a time.

3

2 (f)

No problem in walking up and down stairs.

0

3.

Sitting in an upright chair with a back, but no arms.

3 (a)

Cannot sit comfortably.

15

3 (b)

Cannot sit comfortably for more than 10 minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.

15

3 (c)

Cannot sit comfortably for more than 30 minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.

7

3 (d)

Cannot sit comfortably for more than 1 hour without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.

3

3 (e)

Cannot sit comfortably for more than 2 hours without having to move from the chair because the degree of discomfort makes it impossible to continue sitting.

0

3 (f)

No problem with sitting.

0

4.

Standing without the support of another person or the use of an aid except a walking stick.

4 (a)

Cannot stand unassisted.

15

4 (b)

Cannot stand for more than a minute before needing to sit down.

15

4 (c)

Cannot stand for more than 10 minutes before needing to sit down.

15

4 (d)

Cannot stand for more than 30 minutes before needing to sit down.

7

4 (e)

Cannot stand for more than 10 minutes before needing to move around.

7

4 (f)

Cannot stand for more than 30 minutes before needing to move around.

3

4 (g)

No problem standing.

0

5.

Rising from sitting in an upright chair with a back but no arms without the help of another person.

5 (a)

Cannot rise from sitting to standing.

15

5 (b)

Cannot rise from sitting to standing without holding on to something.

7

5 (c)

Sometimes cannot rise from sitting to standing without holding on to something.

3

5 (d)

No problem with rising from sitting to standing

0

6.

Bending and kneeling.

6 (a)

Cannot bend to touch her/his knees and straighten up.

15

6 (b)

Cannot either bend or kneel or bend and kneel as if to pick up a piece of paper from the floor and straighten up again.

15

6 (c)

Sometimes cannot either bend or kneel or bend and kneel as if to pick up a piece of paper from the floor and straighten up again.

3

6 (d)

No problem with bending and kneeling.

0

7.

Manual dexterity.

7 (a)

Cannot turn the pages of a book with either hand.

15

7 (b)

Cannot turn a sink tap or the control knobs on a cooker with either hand.

15

7 (c)

Cannot pick up a coin which is 2.5 centimetres or less in diameter with either hand.

15

7 (d)

Cannot use a pen or pencil.

15

7 (e)

Cannot tie a bow in laces or string.

10

7 (f)

Cannot turn a sink tap or the control knobs on a cooker with one hand but can with the other.

6

7 (g)

Cannot pick up a coin which is 2.5 centimetres or less in diameter with one hand but can with the other.

6

7 (h)

No problem with manual dexterity.

0

8.

Lifting and carrying by use of the upper body and arms (excluding all other activities specified in Part I.)

8 (a)

Cannot pick up a paper-back book with either hand.

15

8 (b)

Cannot pick up and carry a 0.5 litre carton of milk with either hand.

15

8 (c)

Cannot pick up and pour from a full saucepan or kettle of 1.7 litre capacity with either hand.

15

8 (d)

Cannot pick up and carry a 2.5 kilogramme bag of potatoes with either hand.

8

8 (e)

Cannot pick up and carry a 0.5 litre carton of milk with one hand but can with the other.

6

8 (f)

Cannot pick up and carry a 2.5 kilogramme bag of potatoes with one hand but can with the other.

0

8 (g)

No problem with lifting and carrying.

0

9.

Reaching.

9 (a)

Cannot raise either arm as if to put something in the top pocket of a coat or jacket.

15

9 (b)

Cannot raise either arm to her/his head as if to put on a hat.

15

9 (c)

Cannot put either arm behind back as if to put on a coat or jacket.

15

9 (d)

Cannot raise either arm above her/his head as if to reach for something.

15

9 (e)

Cannot raise one arm to her/his head as  if to put on a hat but can with the other.

6

9 (f)

Cannot raise one arm above her/his head as if to reach for something but can with the other.

0

9 (g)

No problem with reaching.

0

10.

Speech.

10 (a)

Cannot speak

15

10 (b)

Speech cannot be understood by family or friends.

15

10 (c)

Speech cannot be understood by strangers.

15

10 (d)

Strangers have great difficulty understanding speech.

10

10 (e)

Strangers have some difficulty understanding speech.

8

10 (f)

No problems with speech.

0

11.

Hearing with a hearing aid or other aid if normally worn.

11 (a)

Cannot hear sounds at all.

15

11 (b)

Cannot hear well enough to follow a TV programme with volume turned up.

15

11 (c)

Cannot hear well enough to understand someone talking in a loud voice in a quiet room.

15

11 (d)

Cannot hear well enough to understand someone talking in a normal voice in a quiet room.

10

11 (e)

Cannot hear well enough to understand someone talking in a normal voice on a busy street.

8

11 (f)

No problem with hearing.

0

12.

Vision in normal daylight or bright electric light with glasses or other aid to vision if such aid is normally worn.

12 (a)

Cannot tell light from dark.

15

12 (b)

Cannot see the shape of furniture in the room.

15

12 (c)

Cannot see well enough to read 16 point print at a distance greater than 20 centimetres.

15

12 (d)

Cannot see well enough to recognise a friend across the room at a distance of at least 5 metres.

12

12 (e)

Cannot see well enough to recognise a friend across the road at a distance of at least 15 metres.

8

12 (f)

No problem with vision.

0

13.

Continence other than enuresis [bedwetting].

13 (a)

No voluntary control over bowels.

15

13 (b)

No voluntary control over bladder.

15

13 (c)

Loses control of bowels at least once a week.

15

13 (d)

Loses control of bowels at least once a month.

15

13 (e)

Loses control of bowels occasionally.

9

13 (f)

Loses control of bladder at least once a month.

3

13 (g)

Loses control of bladder occasionally.

0

13 (h)

No problem with continence.

0

14.

Remaining conscious without having epileptic or similar seizures during waking moments.

14 (a)

Has an involuntary episode of lost or altered consciousness at least once a day.

15

14 (b)

Has an involuntary episode of lost or altered consciousness at least once a week.

15

14 (c)

Has an involuntary episode of lost or altered consciousness at least once a month.

15

14 (d)

Has had an involuntary episode of lost or altered consciousness at least twice in the 6 months before the day in respect to which it falls to be determined whether s/he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.

12

14 (e)

Has had an involuntary episode of lost or altered consciousness once in the 6 months before the day in respect to which it falls to be determined whether s/he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.

8

 

 

14 (f)

Has had an involuntary episode of lost or altered consciousness once in the 3 years before the day in respect to which it falls to be determined whether s/he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage.

0

14 (g)

Has no problems with consciousness.

0

For additional information specifically related to migrants, visit: http://www.lawcentreni.org/publications/migrant-workers.html

We publish occasional briefings on specific issues in social security: http://www.lawcentreni.org/publications/other-publications/618.html

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Published by Law Centre (NI)  February 2014