I'm glad you find it helpful qintec to get some insight in to what is behind the somewhat simplistic questions in the ESA 50. It is key to the application, extracting evidence from a clinician and arguing the case at appeal that the specific nature of the descriptors is understood.
Remember though that the Atos guidance is just that; 'guidance' - it's not legislation and shouldn't be regarded as such. I see this as a fairly common mistake by DWP decision - makers in justifying the application of the descriptors applied by the Atos healthcare professional.
The more people know about the way the system works the better.
The complications which arise when your claim is 'converted'
From Incapacity Benefit to Employment & Support Allowance.
The rules relating to the migration of awards of Incapacity Benefit , Severe Disablement Allowance and Income Support over to an award of Employment & Support Allowance are incredibly complex. You can read just some of the guidance issued to DWP decision - maker's on the complex array of problems in their manual here.
The rules on conversion of pre-existing awards of Incapacity Benefit, Income Support claimed on the grounds of Incapacity are to say the least muddled and somewhat confusing. I have a legal challenge on with the DWP over the legalities so I need to be a bit careful about what I post on an open forum when proceedings are ongoing and 'sub judice'.
The link to the decision - maker's guidance is of interest but be warned it is not legislation. Guidance itself is often questionable but it does raise some interesting points. Use the link and the numbers shown below to take you to the relevant sections:
Timing of the issue of a conversion notice warning claimant of a transfer to Employment & Support Allowance
The notice will be issued in accordance with the date on which the claimant was next due to be assessed for the purposes of the Personal Capability Assessment (the test related to Incapacity Benefit). It tells the claimant that they will be required to complete a questionnaire (form ESA50), and may be required to attend for medical examination.
Income Support - more than one prescribed category of person
Some claimants entitled to an existing award of Income Support on the grounds of disability may also be entitled to Income Support on other grounds, for example because they are a lone parent or a carer. These claimants may choose to stay on Income Support without the Disability Premium even if their existing award qualifies for conversion to Employment & Support Alloance. Claimants whose existing award does not qualify for conversion may also remain on Income Support without the Disability Premium
(See DMG 45525 and DMG 45555 for further guidance)
Claimant entitled to Income Support other than on the grounds of disability
Where the claimant
1. has an existing award of Income Support and
2. would remain entitled to Income Support on the effective date other than on the grounds of disability the existing award of Income Support only terminates as in DMG 45520 if the claimant notifies the Secretary of State before the effective date that they do not wish to remain on Income Support.
George is entitled to Income Support both because he is incapable of work and because he is caring for his elderly mother. He also receives Incapacity Benefit. After application of the Work Capability Assessment, the Decision Maker decides that his existing awards qualify for conversion to ESA. George notifies during the telephone call made to explain the conversion decision that he would prefer to stay on Income Support. The Decision Maker does not convert the Income Support award to Employment & Support Allowance, and instead terminates Incapacity Benefit and the Disability Premium from the effective date.
Sue is entitled to Income Support on the grounds that she is a lone parent and is incapable of work. She also receives the lowest rate of the care component of Disability Living Allowance. After application of the Work Capability Assessment, the Decision Maker decides that her existing award qualifies for conversion to Employment & Support Allowance. Sue notifies during the telephone call made to explain the conversion decision that she would prefer to stay on Income Support. The Decision Maker does not convert the Income Support award to Employment & Support Allowance, and Sue’s entitlement to Disability Premium is also left in place as long as she remains entitled to Disability Living Allowance.
What the above paragraphs appears to suggest is that claimants who claim Income Support on grounds other than disability can opt out of conversion in certain cases.
Let's say George receives some Incapacity Benefit topped up by Income Support (which would include a carer's premium). By opting out of conversion he loses his Incapacity Benefit and the Disability Premium which is included in his Income Support amount. However he would retain his Income Support based on his personal allowance and the carer's premium.
In Sue's case she can opt out of Conversion because she is a Lone Parent, by opting out she will keep the Disability Premium (and presumably a Severe Disability Premium if she was on middle or higher rate care component Disability Living Allowance. She keeps the premium because she can continue to claim Income Support as a Lone Parent whilst also being in receipt of a disability benefit (but not solely because she is claiming on disability grounds).
There are lots of other complications in this and this is only intended as some general guidance until I've had a better look at the regulations rather than the DWP's slant on it.
My advice is if you are on Disability Living Allowance and receive a premium which tops up an award of Incapacity Benefit with an amount of Income Support and you are sent a 'conversion notice' is to ask the DWP to confirm if you have to go through the conversion process. You should fully explain how your award is made up (as it seems you are under an obligation to provide information rather than to rely on them to ask you) and ask the DWP to refer to a decision - maker who can check the guidance. It's an area where I would advise you to seek specialist help as there are all kinds of twists on this especially if your Incapacity Benefit award is unlikely to transfer to a Support Group placement in Employment & Support Allowance because you will then find your award time limited.
If you are paying deductions, appealing a pre-existing Incapacity Benefit decision (unlikely), on a joint claim for Income Support, ESA or JSA, or paying a mortgage with help from the DWP it gets even more complicated!
You need to know if your existing award is based on National Insurance Contributions, whether you have a protected award from the pre-1995 rules and exactly how your award is made up.
This is a minefield which requires specialist advice in my view! - Seek help
When I have more I will post it here. Please do leave a question on the member's question thread on the forum and I'll do what I can to answer it for you.