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

EEA national and advice regarding JSA and ESA please

Sue123
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EEA Family Support, Children's Centre Calderdale

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Joined: 16 February 2015

Hi, could someone please advise me on this issue?
I have been helping EEA nationals with their problems with JCP.
The man made a claim for ESA as he’s unable to work (so made a joint claim as he’s got a wife).
They both have permanent right to reside, he worked for over 7 years and they have got the Permanent residence cards from HO.
Their claim was rejected and I helped them to appeal.
Meanwhile they were advised by JCP to make a claim for JSA (they said his wife should do this so they get some benefit). So wife made a claim for JSA, not knowing what was coming.
When they won the appeal last month, they thought they were due to get their ESA from the date they applied.
But what happened was, JCP paid them for only a few weeks because they made a claim for JSA which stopped ESA claim.
Now I don’t understand why JCP would advise them to make a claim for JSA if that would stop ESA.
Also if wife was claiming JSA but told JCP that husband was ill and waiting for appeal on ESA (she was advised by JCP to make a couple’s claim I think, they said she can claim as he won’t be required to look for work then).

Is this correct that because the wife claimed JSA, they are not entitled to the money for ESA?
And if JCP advised them wrong, are they entitled to compensation?
thank you

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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If I’ve understood this properly, the decision probably is correct.

It’s not akin to the situation where someone has failed the WCA, claimed JSA during the mandatory recon period and then let that JSA claim continue whilst the appeal is pending - in that situation there should be a revision of the JSA decision and the person switched back to ESA, with the arrears of any premiums due payable.

In your situation the client switched to claiming JSA on JC+ advice, presumably because they would have a an uncontested right to reside as a jobseeker for JSA. In some ways, this wasn’t bad advice - it ensured they weren’t left destitute. And at least during the assessment period for ESA, the amount of benefit paid would have been the same anyway.

So the only potential financial loss that I can see would be the loss of the additional WRAC or SC had the client got as far as the WCA on his ESA claim - and then satisfied the assessment. It could be possible to claim compo for the fact that the WCA assessment has been delayed (he’s basically going to have to start again with a new ESA claim to get the ball rolling) but you’re going to have to show a) the likely length of delay to the WCA that this has caused and b) that he would have satisfied the WCA at the time it would have been likely to occur - this last might be quite difficult.

Sue123
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EEA Family Support, Children's Centre Calderdale

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thank you for your reply.
I didn’t explain all the details as didn’t want to write a long essay.
But basically when they were advised to claim JSA, wife made a claim and was paid probably twice, then sanctioned. I had to ask for mandatory reconsideration, she won and got another few weeks of payment. Then JSA was stopped for some reason, can’t remember why now.
She made another claim for JSA, but for some reason said she couldn’t work when she went for an interview, not sure why she said this, she doesn’t speak english and wasn’t given an interpreter.
Anyway made another claim for JSA, then told she can’t provide compelling evidence of GPoW. JSA rejected. Then got a letter she has a right to reside from the fact her son is at school. Had to make a wholly reprospective claim to get 6 weeks of payments back as they didn’t pay her and should have.
My issue is, that although they were advised to claim JSA and you are saying it might not have been a wrong advise, they were not explained that their ESA would have been stopped by doing so. If they knew, they wouldn’t have made a claim for JSA, because they waited 8 months for the appeal and when they won, they only got paid for 3 weeks because of JSA. They have lost a lot of weeks of not being paid because of the problems with JSA.
The husband has since been diagnosed with depression and is on anti depressants due to all these problems, as it’s been going on for 8 months and they have 4 children.
So I wanted to ask if JCP should have informed them that if they claim JSA, they will lose ESA. And also can they ask for compensation for all those weeks they didn’t get JSA because of all of this?
thank you

JFSelby
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Benefit caseworker (SDAIN project) - Selby CAB, North Yorkshire

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As soon as they decided to make a new claim (ie JSA) they put an end date on the ESA appeal. though obviously the appeal continues and any money can be paid

I think there are lots of occasions where this happens and also possibly occasions where provided the client knew that was what would happen its a very valid ‘option’

Once on JSA each time something stops the JSA thats a new occasion and a new decision and unfortunately a new review/MR/appeal’

If your lucky you get them all listed together(or close on the same day) and often because the tribunal can see what happened the client may gain a bit of sympathy , along with listing every other benefit that gets linked to the same case such as Housing benefit if thats been similarly affected

I have had compensation for clients - under redress for maladminstration which is available but your talking very small amounts and usually clients are happy they got heard rather than compensated particularly

past caring
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Playing devil’s advocate for a moment (but it’s necessary in terms of the obstacles you’re going to come up with if you try for compensation)

Sue3131 - 19 February 2015 04:31 PM

If they knew, they wouldn’t have made a claim for JSA, because they waited 8 months for the appeal and when they won, they only got paid for 3 weeks because of JSA.

 

So you’re saying that if the clients had known the JSA claim would end the ESA claim (but not the appeal) and had also known that it would be 6-8 months before the appeal came to be decided, they would have decided not to claim JSA and would have decided to have had no income for 6-8 months?

They have lost a lot of weeks of not being paid because of the problems with JSA.

So the JSA sanctions/poor administration/poor decsions should have been challenged at the time.

The claimants will need to identify which member of JC+ staff gave them the bad/wrong advice and when and in what format that advice was given in order to maximise any propspects of success.

But this is not an EEA lone parent whose only right to reside is as a jobseeker being advised to close their JSA claim and claim IS instead. I am not even sure it properly constitutes bad advice - it would be reasonable to assume that switching from claiming benefit 1 to claiming benefit 2 would close the claim for benefit 1. And there has to be some onus on a claimant to find out about this themselves if there’s any doubt…..unless they were expressly advised by the jobcentre that the JSA claim would not close the ESA claim.

In short, I’m far from convinced about bad advice here in terms of making the JSA claim - the problem was how the JSA claim was administered and/or decisions on that JSA claim once it was up and running. Which is something different.

 

Sue123
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EEA Family Support, Children's Centre Calderdale

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Sue3131 - 19 February 2015 04:31 PM

If they knew, they wouldn’t have made a claim for JSA, because they waited 8 months for the appeal and when they won, they only got paid for 3 weeks because of JSA.

 

So you’re saying that if the clients had known the JSA claim would end the ESA claim (but not the appeal) and had also known that it would be 6-8 months before the appeal came to be decided, they would have decided not to claim JSA and would have decided to have had no income for 6-8 months?

Yes, because although they made a claim for JSA, they were only awarded it for a few weeks at every time as it was rejected after a few weeks I had to ask for mandatory reconsideration and so on, the money they received did not really help them much. I am not really saying they want all the money back, but because of the problems with JSA, they have lost considerable amount of money.

They have lost a lot of weeks of not being paid because of the problems with JSA.

So the JSA sanctions/poor administration/poor decsions should have been challenged at the time.
I have challenged what I could. Still means they lost a considerable amount of money.

The claimants will need to identify which member of JC+ staff gave them the bad/wrong advice and when and in what format that advice was given in order to maximise any propspects of success.

I have done SAR request, as the family says they were wrongly advised on the phone by JCP, who said that if they make a claim for JSA it won’t have any effect on ESA. Will have to wait and see if that’s true.

But this is not an EEA lone parent whose only right to reside is as a jobseeker being advised to close their JSA claim and claim IS instead. I am not even sure it properly constitutes bad advice - it would be reasonable to assume that switching from claiming benefit 1 to claiming benefit 2 would close the claim for benefit 1. And there has to be some onus on a claimant to find out about this themselves if there’s any doubt…..unless they were expressly advised by the jobcentre that the JSA claim would not close the ESA claim.

Yes, that’s what the client is saying, but I have to wait and see if I can get any proof.

In short, I’m far from convinced about bad advice here in terms of making the JSA claim - the problem was how the JSA claim was administered and/or decisions on that JSA claim once it was up and running. Which is something different.

 

thank you for your advice