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ESA stopped: exceeded 52 weeks permitted work
Thanks again Tom. Sorry I cited wrong regs - should be 2008 as not in UC area.
I understand from your reply that you see no mileage in complaining either to DWP or ombudsman since ESA40 leaflet clearly puts onus on cl to request PW1 even if at no time in claim process were they advised about PW or the time period. Cl’s position seems hopeless therefore. (I still think this is an incredibly tough requirement to impose on ESA applicants and it seems clear in practice that DWP does send out PW1s in these cases even though not bound to do so.)
I did say earlier that after pushing DWP WRAC arrears were paid at end of April. ESA was i/b and reg 45(10) applies. New claim has been made and backdated to 7 April 2014 (ie 12 weeks plus one day) as per DM escalation instructions.
I’m interested in your point re seeking revised decision if new WCA results in SG allocation. I find this tricky: 45(10) prevents backdating claim now but not if cl put in SG even though it would require DWP to backdate into period covered by the section? Is there any reg on this?
I do appreciate your help - just feel cl has had a very raw deal from DWP at time when they face extremely poor health prognosis (haven’t given full details).
Sorry I edited post 16 then saw that you’d replied to it in the meantime.
Reg 45(10) is only relevant for the purpose of 45(4)(a)(ii). As I stated earlier the basis for asking for main phase + SG to commence 27/2/14 would be that 45(4)(b) is an entirely alternative PW ground to 45(4)(a)(ii). Reg 45(10) is irrelevant for 45(4)(b).
If you’d asked initially for the new claim to start from 27/2 they may have, albeit wrongly, denied any payment until a WCA was carried out (only then would they know for definite whether client in SG). That’s why I suggested, before I thought again about it and edited my post, that client should ask for new claim to be backdated to a date more than 12 weeks since 10/1/14, only asking for a revision should he get into the SG. But as you can see from my edited post 16, I think client should have asked for new claim to start within 12 weeks of the old pLCW ending. For the WRAG that would only be possible if his last day of actual work was within 12 weeks.
Edit: As things stand, he’s got the WRAG from 7/4/14. You’re saying he wants the £100.15 p/w (main phase + WRAG) from 10/1/14 - 7/4/14. Well, if he worked throughout that period there doesn’t seem any legal basis unless he was in SG on 10/1/14. Hence my earlier advice. If he continues with his earlier MR application (against decision dated Jan 2014 that stopped his ESA pending appeal) and/or permission request against March 2014 tribunal decision, I’d also ask for an MR of 28/4/14 decision putting him in WRAG only, to avoid any successful appeal of the earlier decisions being effective for a fixed period, ie upto 7/4/14.
You could also look at the commentary to Reg 40 to see if his work could have been ignored as de minimis - if so then ESA could arguably have continued from 11/1/14. That’s relevant to your earlier MR request.
[ Edited: 26 May 2014 at 06:06 pm by Tom H ]I am not saying cl wants WRAC from 10/1/14 to 7/4/14 - rather that these weeks should not be paid but should not close claim since this will break link. I realise rules don’t appear to allow this. Yet when cl called DWP in February they were not told consequences of continuing work but merely that PW1 would be sent out and must be completed and returned. Only in April did DWP explain the PW rule and cl was sent PW7 to state date stopped work. By this time the link was broken.
As I understand it your argument in penultimate Edit para that WRAC is payable from 7/4 is premised on cl getting into SG. Since cl has had to make new claim WCA is probably 13 weeks at least in the future unless HCP does it on scrutiny. Moreover dialysis not yet started and may be delayed anyway due to need for operation so cannot assume SG will be outcome.
ESA was stopped in January but no decision made hence no appeal (presumably had there been a decision it would have been under old rules so not MR?). So far I have put in for SoR from tribunal and asked for MR of only decision cl so far received in letter of 28 April. Presumably the latest decision re PW will be notified to cl soon - should we ask for MR or is it hopeless?
..Further calls to DWP eventually produced decision letter 28 April stating from 13 April 2013 ESA will be £100.15 pw as now place in WRAG but continuing “We cannot pay you ESA from 11 January 2014”. No reason given for this in letter.
..New claim has been made and backdated to 7 April 2014 (ie 12 weeks plus one day) as per DM escalation instructions.
..Since cl has had to make new claim WCA is probably 13 weeks at least in the future unless HCP does it on scrutiny.?
The third of the above statements is not consistent with the first and second. And the first and second statements give different dates for the new pLCW start date. If he’s in the WRAG from 13 April as per statement 1 then he’s had a WCA so how is he having a further WCA as per statement 3. It seems there is no legal basis for paying him WRAC from start of his new award (7 or 13 April) given that he asked it to start, on the advice of DWP, 12 weeks and one day since last one ended. Why do you want to close the gap between 10/1/14 and start of new award?
Sorry - been so concerned about cl that probably haven’t explained clearly. Decision of 28 April was DWP review following tribunal decision of 25 March - reference to payment from 13 April merely related to increased rates but no ESA was payable anyway as letter stated “We cannot pay you etc.” - cl received only arrears of WRAC.
Escalation stated that new claim date had to be from 7 April. I don’t know exactly what date cl put on PW7 as only spoke over phone and then sent it off but I’m guessing it was 6 April (I knew it was in first week of April). Escalation assured me link was broken and new WCA would have to take place. I just want to try to argue against this and allow cl to continue in WRAG.
..cl received only arrears of WRAC.
Arrears for the period wk14 of original award - 10/1/14, that right?
Reg 45(4) provides for the following category of exempt work:
“(4) Work which is done for less than 16 hours a week, for which earnings in any
week do not exceed 16 x National Minimum Wage, subject to paragraph (9A), and
which–
(a) is done during a period of specified work, provided that–
(i) the claimant has not previously done specified work,
(ii) since the beginning of the last period of specified work, the claimant has
ceased to be entitled to a relevant benefit for a continuous period
exceeding 12 weeks, or
(iii) not less than 52 weeks have elapsed since the last period of specified
work; or
(b) is done by a claimant who has or is treated as having limited capability for
work-related activity.
(4A) For the purposes of paragraph (4)(a), a period of specified work begins on
the first day on which any specified work is undertaken and continues for a period of
52 weeks, whether or not any further specified work is undertaken during that period.”
You’ve established that his period of specified work ran from 10/1/13 - 10/1/14. So from 11/1/14 he was no longer doing exempt work because his 52 wk period of specified work had come to an end and a new period could not start because he did not satisfy any of (i) - (iii) of 4(a); nor did he satisfy 4(b). As a result, his entitlement to ESA ended under Reg 41(1) not under Reg 40(1) so the argument about remaining entitled in the non-work weeks is not relevant here, sorry for suggesting it was.
The fact he didn’t realise that his PW had ended is not a ground for compensation in my view. Otherwise, those people who don’t read the ESA40 leaflet would be put in a better position financially than those who correctly report PW using PW1. That cannot be right.
Sub para (a)(ii) above appears capable of being relied on where you wish to re-start specified work within the same period of specified work, eg you do specified work form wk1-20, stop doing it, then apply to do it again from wk40 to wk52. You couldn’t automatically re-start it at wk 40 in that example unless you satisfied (a)(ii). You certianly wouldn’t satisfy (i) because you worked between wk1-20 nor (iii) because your current period of specified work has not even ended let alone 52 weeks having elapsed since its end. That is the effect of the words “provided that” at the start of para (4). Just being in a period of specified work is not enough, you still need to satisfy one of (a)‘s conditions or (b).
But (a)(ii) also appears capable of allowing you to start a new period of specified work without having to wait 52 weeks since the end of the last period of specified work. I read sub paras (a)(i) - (iii) as disjunctive so that each is a freestanding ground. It seems the DWP share that view. That is why they have advised him to wait 12 weeks and one day, ie in order to satisfy (a)(ii). However, that would only be sensible advice if he was continuing to work and claim. The advantage of (a)(ii) is that he can start a new period of specified work but only at the cost of having to start a new assessment phase re his new claim. That’s because whilst 12 weeks and one day is good for (a)(ii) it’s very bad for Reg 145(1) ESA Regs.
Reg 145(1) provides that pLCWs link if they are separated by no more than 12 weeks. If the pLCWs link then it’s possible for main phase ESA and a component to be paid from day one of the new pLCW either because the assessment phases of the two pLCWs are joined together (Reg 5) which is not the case here, or because it is not necessary for the assessment phase of the new pLCW to end (Reg 7), which could be the case here.
It will be very close in his case. His last pLCW appears to have ended on 10/1/14 but I’d check whether it was upto and incl 10 Jan or excluding 10 Jan, ie ending on 9/1/14. The 12 weeks (84 days) under Reg 145 runs from whatever date it is. Say it’s 10 Jan then if he asks for his new claim to start (be backdated to) no later than 4 April (ie, the 84th day) he would be entitled in my view to at very least main phase plus WRAC from that date by virtue of paras (1)(b), (1A) and (1B)(a) of Reg 7. Further support for this can be found in CE/52/2011.
7(1B)(1)(a) provides:
“(a) case 1 is where–
(i) the claimant was entitled to an employment and support allowance
(including entitlement to a component under sections 2(2), 2(3), 4(4) or
4(5) of the Act) in the earlier period of limited capability for work, and
(ii) the previous period for which the claimant was entitled to an employment
and support allowance was terminated other than by virtue of a
determination that the claimant did not have limited capability for work;”
Your client’s previous pLCW ended because he was doing remunerative work defined by Reg 41(1). Consequently, he did not satisfy para 6(1)(e) of Sch 1 to the WRA 2007 (one must not be doing remunerative work). That is very different to being found not to have LCW. Accordingly, he satisfies case 1 above.
However, his last day of work would have needed to be no later than 3 April. If later then his new pLCW could not start until, at the earliest, 5 April which would be too late for it to link under Reg 145. He would then have to start a new assessment phase and wait 13 weeks before qualifying for the WRAC. However, his last date of work above does not affect the start date of his pLCW should he eventually qualify for the SG. That’s because whilst he was still working on 27 Feb onwards, all that work would once again be exempt work under para 45(4)(b) above should he retrospectively be put in the SG from that date. So it would matter not one iota that the period 10 Jan – 27 Feb does not exceed 12 weeks for the purpose of 45(a)(ii). 45(b) is an entirely alternative ground to the latter.
[ Edited: 27 May 2014 at 07:25 pm by Tom H ]
Continued…
I would ask for his new claim to be backdated 3 months from the date of claim. The problem is that the DWP might not pay him until he’s been assessed under WCA. That would be wrong because he should be paid at very least the assessment phase from 5 April or, better still, main phase plus WRAC where his new pLCW could have started on 4 April but for the fact he’s asking for it to start earlier, eg from 27/2/14.
The DWP have forced him to start his new pLCW from 7/4/14. He can alter that date because a decision does not yet appear to have have been made on his claim. I’d be quick, however, as there’s currently no reason why assessment rate cannot commence being paid from 7/4/14. Once they’d made a decision to award form 7/4/14 it’s more difficult to amend the start date of your pLCW.
But be aware that if he does wish to do that type of PW again in future and he cannot get into the SG, he will have to wait until 11/1/15, 52 weeks since his last period of specified work ended (45(a)(iii) above) unless he chooses this present or some future opportunity to break the link with his old period of specified work, ie actually rely on 45(a)(ii). The latter requires a continuous period exceeding 12 weeks so if he doesn’t choose to break the link on this occasion he’d have to do another 12 weeks and one day in future in order to break it or simply wait until 11/1/15.
What does he want? - the chance of SG from late Feb 2014 or, failing which, potentially WRAC from early April 2014, or to work again in the near future. He cannot have it both ways unless he gets into SG.
Hope that makes sense.
[ Edited: 27 May 2014 at 06:10 pm by Tom H ]Re WRAC arrears - yes those are the correct dates.
I thought reg 41(1) only defined “remunerative work” and it was reg 40(1) taken with reg 44(1) which actually disentitled claimant. Probably doesn’t matter but I’m having trouble getting my head around this..
On ESA40 I still argue that cl fulfilled the leaflet’s obligation to “tell us straight away if you want to do PW” since they informed DWP fully of the work at time of claim. This seems to me different from someone who makes no disclosure (where I agree their ignorance shouldn’t unfairly advantage them over someone who correctly completes PW1).
Reg 45(4)(a)(ii) clearly requires a new claim to be started after 52 weeks are exceeded in order to requalify for PW. Cl doesn’t care about requalifying for PW (£146 per month against £100 per week is the economics and health problems now much worse). BUT as noted above at #19 DWP didn’t advise stopping work in February just saying they would send out PW1 form (even though 52 weeks had expired). Maybe it wasn’t intentional but this omission to explain consequence until end of April meant that cl cannot avoid breaking link since, as noted earlier, last work day was after the 12 week date of 5 April.
I understand SG and PW but as I said before I’m not confident that cl will get retrospective allocation. Obviously if they do then problem will be sorted.
Don’t understand on what grounds DWP could withhold even assessment rate for 13 weeks as per your penultimate paragraph. Do you see this as a real risk?
On backdating claim: originally telephone adviser did b/d 3 months but when I spoke to DM escalation he said this could not be done and that they would notify new claims. I should have challenged this and will try to get reasons now and to seek to reinstate b/d.
Tom I’m sure you’re fed up with this saga by now but I have one final question and then I’ll stop posting: is there any mileage in arguing reg 145(3) as they get CTC for 8 year old child? Could this satisfy 145(4) and allow cl to link since within 104 weeks?
..I don’t know exactly what date cl put on PW7 as only spoke over phone and then sent it off but I’m guessing it was 6 April (I knew it was in first week of April).
..as noted earlier, last work day was after the 12 week date of 5 April.
With respect, as the first statement above shows, you didn’t say the last day definitely “was” after 5 April. You were guessing which is why I advised double checking.
I did make it clear later in my earlier post that the basis of his ESA disallowance was actually para 6 of Sch1 WRA, ie doing remunerative as defined by Reg 41(1). I was trying to make the point earlier that it didn’t matter whether Reg40(1) [and, it follows, Reg 44] were capable of stopping his ESA on 10 Jan (I doubted that it could but said it was academic) simply because Reg 41(1) together with para 6(1)(e) of Sch1 represented unarguable grounds for stopping it.
..DWP didn’t advise stopping work in February just saying they would send out PW1 form (even though 52 weeks had expired). Maybe it wasn’t intentional but this omission to explain consequence until end of April meant that cl cannot avoid breaking link..
Fair enough. But I think it’s unrealistic to expect DWP to compensate someone, particularly in the current climate, for one of their staff failing to advise someone that they’d risk receiving a lower amount of benefits in future unless they stopped working.
..Don’t understand on what grounds DWP could withhold even assessment rate for 13 weeks as per your penultimate paragraph. Do you see this as a real risk?
It’s always a risk that they’ll get it wrong. They could say that on 27 Feb he, rightly, did not satisfy para 6(1)(e) of Sch1 and so make decision that not entitled. He could, ultimately, appeal that decision of course but in meantime would be faced with putting in a new claim from a date DWP are happy with. Which in fact appears not too far off the mark here, hence you’re having to revisit the issue why original 3 months backdate request wasn’t respected by DWP. The above decision would be wrong because, as we know, if he was retrospectively put in SG from 27/2 then he would satisfy para 6 of Sch 1 on that date. So they cannot say for definite that not entitled until they know the outcome of WCA.
..is there any mileage in arguing reg 145(3) as they get CTC for 8 year old child? Could this satisfy 145(4) and allow cl to link since within 104 weeks?
Sadly not. Paras (3) & (4) revoked from Reg 145 from 1.5.12. The only para of Reg 145 currently in use is para (1): the linking rule.
[ Edited: 28 May 2014 at 08:23 am by Tom H ]
.
Going off topic slightly, but can ESA claimants do permitted work while on the assessment rate?
Yep.
Thanks 1964. Is there a reg that says claimants can do PW while on the assessment rate, or is it that there isn’t a reg which says they can’t do PW while on assessment rate?
The latter. There’s nothing in the regs to stipulate you have to be on any particular form of ESA to work under the PW rules.