On top of Arsenal's defeat on the weekend, I am confused about the exclusion from the LCW test as per Reg 33(2) of main regs. It says you are excluded from the LCW test if you are not a 'qualifying young person' (QYP), and in education, and on DLA. Given that the definition of a QYP includes those in relevant education, the upshot of reg 33(2) seems to be that you don't have to face the LCW test if you are 'education' (defined in reg 14), and on DLA, as long as its not relevant education or you are covered by the QYP definition in other ways. Is that right?

However, Reg 15 seems to say that if you are in relevant education (as a QYP), you are to be treated as being in 'education', for the purposes of gaining IRESA whilst studying, as long as you are on DLA. So far then these Regs combine to say that if you are in relevant education, you are not exempted from the LCW test (as per Reg 33), but if you are in relevant education and do pass the LCW test, you can get IRESA, as long as you get DLA. Is that correct?

Then there is reg 16. My question is, who in reality is this aimed at? Seems to say if you are under 19 and not a QYP, you do not count as being in education, as long as the course is not advanced. This would appear to exclude those in relevant education (see above). So who do they mean? Do they mean full or part time students who are 18?

Lastly, what do you make of paras 39 and 40 of Memo DMG 30/08, which say...

“39 DMG 30716 gives guidance on circumstances where a young person is entitled to JSA(IB). From 27.10.08 a further category is added to the list.

“1.7 has limited capability for work (DMG 30761 - 30762)”

40 DMG guidance will be expanded as follows

“Young person has limited capability for work

30761 A young person is entitled to JSA(IB) if the young person has limited capability for work1. (1 WR Act 07, Part 1; JSA Regs, reg 61(1)(g))

30762 A young person who satisfies this condition is entitled to JSA(IB) for the period starting on the date of claim and ending on the earlier of1

1. the day before the young person’s 18th birthday or

2. the day before this condition is no longer satisfied.

(1 reg 61(2)(b))...”

Blimey, it looks like you can get IBJSA if you have LCW.

Nurse, the curtains!

Colleagues, sorry if I am massively missing the point or points in all this. Your thoughts would be most welcome.

Steve

Hi Steve

I have also been looking at this issue and getting an increasingly violent migrane.

Agree with your interpretation 100%.

Due to reg 33(2) it does appear that students in full time non advanced education will only get irESA if they both pass the LCW test AND also get DLA. Other students should get irESA without going through the LCW test, so long as they get DLA. However this throws up the question about how much these students would then receive - if they don't go through the LCW test how can they be paid the extra support/work related activity addition? Will they therefore be stuck on the basic rate?.

Share your puzzlement at reg 16 - I was thinking that this rule was there to allow ESA claims by those aged 16-19 who are in non-advanced education of less than 12 hours or who are being educated outwith a recognised establishment. This would make sort of make sense since the parents of young people in those circumstances cannot get CB/CTC for them.

My view of the ESA rules for young people in education is as follows:

contribution based ESA (cbESA)
Apart from LCW test a second rule applies to those aged 16-18 only. Claimants in this age group must be treated as engaged in less than 21 hours pw study (remembering that some hours of study can be ignored if not suitable for non disabled contemporaries). So pretty much same as IBY.

IrESA rules are much more complex.

A young person aged 16-19 in full time non advanced education can claim income related ESA if they have LCW AND they are entitled to DLA.

So, someone who is 16-18 on a course involving 21 hours or more study who has no DLA cannot get either cbESA or irESA. But someone who has LCW but no DLA can get cbESA (so long as 21 hour rule not an issue).

A young person in advanced education can claim irESA if they are entitled to DLA. However they may be paid at reduced rate unless they are also assessed as having LCW? If they are not getting DLA irESA cannot be paid, even if they are assessed as having a LCW. If they are aged 16-18 and in 21 hours or more study they will also be prevented from claiming cbESA. Presumably such students will be expected to rely on sources of student finance instead.

A young person aged 16-19 who is in non-advanced education of less than 12 hours or who is educated out-with a recognised educational establishment can claim irESA if they have LCW OR they are entitled to DLA. However the amount paid will be at a reduced rate unless they are assessed as having a LCW? Unlike the previous categories someone in this category can get irESA if they have limited capacity for work but no DLA. The same rules will also apply to someone in non advanced education who is either 20 or above or who was accepted onto their course after turning 19.

One half of me thinks that these rules are so complex that my interpretation can't possibly be right!?

Who loses under the new rules:

1. Students in full-time non-advanced education who get DLA but who fail the LCW test. Previously they would have been eligible for IS on the basis of their DLA award alone. Under ESA they will get nothing.

2. Students aged under 16-18 in advanced education involving 21+ hours study who have LCW but who do not get DLA. Previously they would have been eligible to claim income support on the basis of their incapacity for work. Under ESA they get nothing.

Haven't got my head around the JSA memo yet!

Derek

Hi Derek,

Thanks for such a detailed response, which I will ponder. Your point about the matter of Main Phase group allocation is of course important to those nodded through the LCW test. I suppose they will have to process the person for LCWRA, even though they are exempt from the LCW test itself.

Will get back to you

Steve

Steve

On reflection you are probably right about the LCWRA test still applying to students who get irESA by virtue of Reg 33(2). However couldn't this mean a scenario where a student fails the LCW test in assessing entitlement to cESA, yet is still put through the LCWRA (and presumably awarded an employment related addition) as part of irESA.

Derek

Hi Guys

I almost gave up with this. I see where you're going with the education bit (though still struggling), but what is really bugging me is why (reg 33(2)) someone who is not a QYP on DLA, and who is receiving education is treated as having LCW. In the context presented I read 'treated' to mean exempt.

But even more confusing, how can someone be treated as having LCW only for the purpose of one part of ESA (ESA(IR)). Does this mean that someone goes through the LCW test to determine if they get ESA(CB), and then - supposing they fail - they get ESA(IR) anyway just because they're studying? How is it determined which component they get.

Derek suggests early in his reply that the LCW test is applied and the rule in reg 33(2) is like an ancillary entitlement condition. This would seem far more logical, but the meaning is already provided for by reg 18, which exempts from 6(1)(g) sch 1 WRA (only a further rule excluding QYP's would be necessary).

Given where it is - Part 5 - and the heading attached to the regulation ' ...circumstances where claimants are to be treated as having LCW', I still favour that it's exemption from the LCW - but very bizarre. So bizarre in fact, that I am almost certainly wrong!

If I can get round this question, I'll look at the regs 14-17.

Completely confused about ESA, Steve, but not about Arsenal's defeat. Insert smiley face!!

Wed 15-Oct-08 09:44 AM by Paul_Treloar_

This is the response we received from DWP regards reg 16:

Regulation 16 of the ESA Regulations provides the circumstances in which a where a claimant is not treated as receiving education and therefore not entiteled to ESA. I accept that if the claimant was following any of the courses listed they would be regarded as a qualifying yoking person and not entitled. However, this provision is about where the course being followed is not in the list, thereby making the person not excluded because they are undertaking education.

Not sure if that makes any more or less sense than Arsenal losing unfortunately......

Hi Paul and fellow sufferers,

I do not follow the DWP thinking on Reg 16, as mentioned above. It seems to suggest that being in 'education' is way into ESA, which of course its not, unless you count the exemption from the LCW test for those on IRESA and DLA whilst being in education (Reg 33 etc).

Reg 16 seems to exclude certain people from being in education, for the purposes of ESA, which is probably helpful because they don't then have to chase a DLA entitlement to study F/T and claim ESA at the same time.

I wish I had the feeling that I really knew what I was talking about...

Steve

A qualifying yoking person? Are they going to make the young uns pull carts?