Income-related Employment Support Allowance

In order to obtain income-related Employment Support Allowance (ESA IR) you must:

• have no income or an income which does not exceed the applicable amount and ;
• have capital of less than £16000 and;
• not be entitled to State Pension Credit and;
• not have a partner who is entitled to income related Employment Support Allowance or State Pension Credit or Income Support or income-based Jobseekers Allowance and;
• not be in remunerative work (see below) and;
• not have a partner who works more than 24 hours per week (see below) and;
• not be receiving education (see below)
• have a right to reside in either the Uk, the Channel Islands th Isle of Man or the Republic of Ireland (see bleow)
• be habitually resident in either the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (see below)

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Remunerative Work

Remunerative work is defined as work that is done in return for payment or in the expectation of payment.

You may still be entitled to ESA (IR) if you work for less than 16 hours and earn less than £92 per week.

There are some exceptions to the remunerative work rule. These are-

• work as a councillor
• work done for one day per week as a member of the DLA Advisory Board or as a member of a social security appeals tribunal.
• domestic tasks carried out in your own home
• caring for a relative
• caring for a foster child or providing respite care in your own home
• any activity done during an emergency solely to protect another person or to prevent serious damage to property or livestock

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Your partner's work

Your partner must not work for more than 24 hours per week. Certain activities are exempt from this rule-

• childminding done in your partner's home
• voluntary work or work done for a charity or voluntary organisation in return for payment to cover your expenses.
• attendance on a training scheme for which a training allowance is paid
• receiving assistance under the New Deal self-employment route
• work as a councillor
• caring for a foster child or providing respite care in your partner's home
• being in receipt of a Sports Council National Lottery award (and no other payment for that sporting activity)
• duties undertaken by part-time firemen, auxiliary coastguards, part-time lifeboat crews, members of a territorial or reserve force.

Your partner will not be classed as being in remunerative work if he or she is-

• mentally or physically disabled and has reduced earnings or works reduced hours as a result of that disability
• involved in a trade dispute
• regularly and substantially caring for someone who is in receipt of Attendance Allowance or the highest or middle rate of the care component of Disability Living Allowance.
• in receipt of Carers Allowance
• living in a care home, an Abbeyfield home or an independent hospital and requires personal care

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Education

Being in full time education or non-advanced education or education at a recognised educational establishment will disqualify you from ESA (IR).

You are not disqualified from income related ESA if you are in full time education and are entitled to either component of Disability Living Allowance.

Government funded courses in England and Wales are classed as full time if they involve more than 16 hours of guided learning per week. "Guided learning" is time spent when a member of staff is present to provide lectures, tutorials and supervised study.

A government funded course in Scotland is considered to be full time when it comprises 16 hours or more per week of "classroom or workshop based programmed learning under the direct guidance of teaching staff". In Scotland a funded course is also defined as full-time if it involves more than 21 hours per week made up of less than 16 hours of programmed learning plus extra hours using structured learning packages which are supported by teaching staff

There is no definition of full-time for courses that are not government funded. If your course is unfunded then the DWP will contact your school or college to determine whether the course is full time or not.

If you are under 19 and not a qualifying young person for child benefit then you will not be considered to be in education unless your course leads to a first or postgraduate degree (or equivalent), a higher education or higher national diploma or any course of a standard higher than advanced GNVQ or equivalent.

Non-advanced education is defined as "education of a standard up to and including-

• non-advanced education up to (GCE) A level
• Advanced General NVQ
• Scottish Certificate of Higher Education
• Ordinary National Diplomas or BTEC".

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The applicable amount.

The applicable amount includes your personal allowance which may include any amount for any partner that you may have. If appropriate the applicable amount may also include premiums, certain housing costs and the support component or the work related activity component. Please see our Employment and Support Allowance rates page for a detailed explanation of how the applicable amount is calculated.

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The right to reside and habitual residence tests.

Applicants who do not meet the contribution conditions and apply for income-related Employment Support Allowance (ESA IR) must show that they have a right to reside and are habitually resident in either the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (this is known as the Common Travel Area or CTA).

Claimants who have come to the UK in the last two years who are not UK nationals will need to provide the appropriate documents to show that they have a right to reside. Anyone who does not meet this requirement will not be eligible for ESA (IR).

UK and Irish nationals coming to the UK from outside the Common Travel Area will need to have a current passport and birth certificate or a certificate from the Home Office confirming the grant of citizenship or the Irish equivalent.

EEA18 (Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, Netherlands, Portugal, Ireland, Spain, Sweden UK, Iceland, Norway and Liechenstein) and Swiss nationals have the right of residence if they are working in the UK or if they are able to support themselves and their family in the UK without the help of public funds.

Nationals of Bulgaria and Romania have the right of residence if they are the subject of the Worker Authorisation Scheme. Others will need to produce a blue registration certificate and a valid passport or ID card.

Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia nationals will need to be registered with the Home Office Worker Registration Scheme in order to have a right to reside in the UK.

You do not have a right to reside if you are subject to Immigration Control.

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Habitually resident.

To meet the habitual residence test you must show that you have lived in the UK for at least 1-3 months and that you intend to remain for some time. You are not required to take up permanent residence in the UK, an intention to leave the country after 2 or 3 years will still meet this criteria provided you can show that you have a "settled" intention to remain for the time being.

When deciding on habitual residence the DWP will take the following factors into account-

• Whether or not you have brought your possessions with you.
• Whether you have done everything necessary to establish residence before coming.
• whether you have a right to reside in the UK.
• whether you are seeking to bring your family with you.
• Whether you have "durable" ties with the UK.

You may still be considered to be habitually resident even if your accommodation has consisted of a series of temporary abodes.

If you have lived in the Common Travel Area and have established habitual residence and then moved abroad, you will be considered to be habitually resident immediately upon your return if you can show that you have maintained links with your previous residenc during your absence.

European Community (EC) law is at slight variance with the British regulations with regard to habitual residence. EC law requires the DWP to take the following factors into account when deciding on habitual residence-

• Your main centre of interest, including whether you have sold or retained your property in the UK, if you still have a job in the UK, if you have maintained friendships in the UK, if you have kept up your membership of clubs or social organisations in the UK.
• The length and continuity of residence in a particular country. If you have a home or close family in another country then you are likely to be considered habitually resident in that country. If you have lived in a number of different countries but have now moved permanently to the UK then you are likely to be considered to be habitually resident in the UK.
• Length and purpose of the absence from that country. Time spent away from the UK should be considered in terms of frequency, length and purpose. If you don't make many visits back to the UK or have bought a home abroad then this may indicate that you are no longer habitually resident in the UK.
• Employment. You employment record, the nature of any previous occupation and your plans for the future are all described as relevant factors.
• Intentions. If you intend to stay in the UK for only a short period to visit friends for example or to obtain medical treatment then you will not be considered habitually resident. Selling your home abroad and buying a house in the on the other hand should indicate habitual residence.

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Exemptions

You are exempt from the habitual residence and right to reside tests if you are-

• an EEA national who is in "genuine and effective employment" or
• an EEA national who has been in genuine and efective employment but are temporarily unable to work due to illness or accident or
• an EEA national who has been in genuine and effective employment but are now involuntarily unemployed and are signing on with Jobcentre Plus or have started vocational training or
• a family member of one of the above or
• an EEA national who has acquired a right of permanent residence. This applies to people and their families who have reached the age or entitlement to a state pension or has taken early retirement or has stopped working due to a permanent incapacity to work or
• a refugee or
• someone with exceptional leave to enter or remain in the UK
• someone who has been granted humanitarian protection by the Home Office or
• someone who is not subject to immigration control but who has been deported, expelled or legally removed from another country or
• somone who left Montserrat after Nov 1st 1995 because of the volcanic eruption.

EEA states are Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Republic of ireland, Romania, Slovakia, Slovenia, Spain, Sweden, UK (including Gibraltar but not the Channel Islands or the Isle of Man), Iceland, Norway and Liechenstein.

There is no legal definition of "genuine and effective employment". Decision Makers are advised to consider the following factors when deciding whether work done is genuine and effective-

• the period of employment
• The number of hours worked
• the level of earnings
• whether the work done was regular or erratic
• whether the person has become voluntarily unemployed

If you have become involuntarily unemployed you will need to show that you have been working for at least a year before becoming unemployed and that you have been unemployed for no more than six months.

If you have stopped working due to a permanent incapacity you will need to show that you have resided continuously in the UK for at least two years before stopping work or that your incapacity reslted from an accident at work or an occupational disease which entitles you to a pension payable by an institution in the UK.

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