DWP refusal to accept a claim for new-style ESA because the claimant has insufficient national insurance contributions

Use this template if all the following apply

• your client has a health condition which affects their ability to work (and will have at least limited capability for work)
• they have contacted DWP to make a claim for new style ESA
• DWP refused to accept the claim as your client has insufficient national insurance contributions and did not award NI credits for limited capability for work

This letter assumes that (so can be changed)

• your client has an appointee
• your client is a student
• your client receives PIP

When not to use

Do not use this letter if: 

• your client's claim for new style ESA has not been accepted for any other reason other than insufficient NI contributions

The main legal arguments in this template are:

• Regulation 8B (1) of Social Security (Credits) Regulations 1975 (Credits Regs) provides that for the purposes of entitlement to any benefit by virtue of earnings or contributions a claimant shall be entitled to be credited with earnings equal to the lower earnings limit then in force.
• Regulation 8B (2)(a)(iv) Credits Regs provides for Limited Capability for Work (LCW) National Insurance Credits (NICs) where a  claimant would have LCW if they met the national insurance contribution conditions for Employment and Support Allowance (ESA) (by virtue of s.1(2)(a) of the Welfare Reform Act (WRA))
• Under regulation 26 of Employment and Support Allowance Regulations 2013 (made under the WRA), New Style (NS) ESA claimants are treated as having LCW until their capability for work is assessed (by a Work Capability Assessment).
• A claimant is entitled to NICs for LCW on giving DWP notice of basis on which they satisfy regulation 8B(2)(a).
• DWP guidance, Advice for Decision Making confirms at para A1052 that DWP is responsible for awarding NICs for LCW and the Credit Title Guide makes clear the HMRC NICs system operates on behalf of the DWP.
• There is no clear way to give DWP notice other than the claim for new style ESA.
• If the DWP does not believe that a claim for new style ESA is notification as required under regulation 8B (2)(a)(iv) then the failure to put in place a mechanism to give notification is unlawful.
• Under s.8(1)(a) Social Security Act 1998, a decision maker must decide whether to make an award of benefit in respect of a claim made for that benefit.
• Refusal to accept a claim for new style ESA and/or for NICs is unlawful as it deprives a claimant of an appeal remedy. Decisions made under s.8(1)(a) Social Security Act carry a right of appeal under s.12 of the same act.

Information about your client

• name
• address
• national insurance number (NINo)
• date of birth (DoB)

Background facts

Such as:

• your client's household, family, disability, work, etc.
• your client's appointee’s name and their relationship to your client

Information relating to the decision

• the date your client or their appointee contacted the ESA new claims helpline
• how the DWP responded including the date and what was said

We've created this guide is to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.