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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Sporadic, well-paid SPW

unhindered by talent
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Welfare Rights Team, Aberdeenshire Council

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My client is about to claim ESA but queried whether sporadic work as a film extra (paying £90 per day) could be counted as SPW. One day would be OK but 2 days’ work would take him over the limit. Would he them be deemed fit for work or would the income just be counted for IRESA? I can’t find anything to allow income above the threshold to be counted so I suspect the former, however he has Down’s Syndrome so really isn’t fit for any other kind of work.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Going over the SPW limit would kill his ESA claim dead and he’d have to start over.

I’ve got a similar case on my cards at the minute. The new FEPS team at Kilmarnock appear keen to make rules up as they go along; caution is merited.

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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If the earnings from PW/SPW exceed the threshold in a week then the claimant is not entitled for ESA for that week. However, Reg 45 says:

(8) The number of hours for which a claimant is engaged in work is to be determined—
(a) where no recognisable cycle has been established in respect of a claimant’s work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which the claimant is expected to work in a week;
.(b)where the number of hours for which the claimant is engaged fluctuate, by reference to the average of hours worked over—
(I) if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences);
(ii) in any other case, the period of five weeks immediately before the date of claim or the date on which a superseding decision is made under section 10 (decisions superseding earlier decisions) of the Social Security Act 1998(3), or such other length of time as may, in the particular case, enable the claimant’s average hours of work to be determined more accurately.

So there is some leeway for averaging out hours over a cycle of work. In your client’s case it is going to be slightly complex to work out what a recognisable work cycle is. Are they paid at the end of the day, the week, or the month? If daily/weekly I would think it may well be safest to stick to 1 day p/w to avoid complications, if monthly there is more scope for averaging it out although the date of pay will be just one factor in the cycle.

We do a bit of Permitted Work stuff at my mental health job and every single person who has applied for it recently has been reassessed almost immediately. Guess your client will be OK with this but just a warning.

stevenmcavoy
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Welfare rights officer - Enable Scotland

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interesting to see that billy.  will need to keep my eye on that as i get a lot of pw clients and havent seen that.  maybe a geographical bdc issue/client group one?

unhindered by talent
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Welfare Rights Team, Aberdeenshire Council

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Thanks for that, folks. I couldn’t see how the earnings could be averaged, given that the work doesn’t have a recognisable cycle. I do think the safest thing is to stick to one day per week. Bit worrying about the reassessments though. This is always my worry when people start permitted work but it’s not happened here (yet).