Sick notes pending MR - effect on JSA?

http://www.rightsnet.org.uk/forums/viewthread/6170/P15

With regard to the above thread, i’m posting my query in this forum in case it’s more pertinent here.

My client FTA a work capability assessment during assessment phase and is claiming ‘good cause’. She has claimed JSA but her sick note was due on May 3rd. If it’s not in by June 13th (6 weeks) , my concern is that it ends her ESA claim. On the other hand, if she sends it in, her JSA may stop. The thread above suggests that you get the sick note but not send it in however if is more than 6 weeks late, would the ESA claim under reconsideration stop and another have to be made?

Hi - as far as I can see there is no requirement to send in fit notes while an MR is pending but you will need them to get ESA backdated over the MR period once the appeal is lodged (CPAG pg 1005). But I think it’s fine to hold on to them until the appeal is registered. If you fail to provide evidence the DWP can only suspend the claim (which of course they have anyway) and they must write to you if they want you to provide any information or evidence - see CPAG pg 1169. Don’t know if anyone else sees it differently?

Don’t disagree Daphne, but couldn’t she submit med certs to JSA to take advantage of up to 13 week sickness provisions, which might mean some reduction in work search etc and would hopefully see her through the intervening period anyway whilst MR decided? Sick note is a sick note surely, so when subsequent appeal lodged (presuming MR doesn’t change), then could revert to ESA again anyway?

This is completely off the top of my head, so shoot me down if I’ve missed something obvious.

unhindered by talent - 31 May 2016 10:49 AM

my concern is that it ends her ESA claim.

She doesn’t have an ESA claim to end.  It was ended by the FTA decision.  If that decision is successfully revised or appealed after 13 June, I think you’re worried that not having supplied a sick note by 13 June would mean any assessment rate ESA re-instated by the revision/appeal would end on 13 June due to Reg 32A ESA Regs 2008.

First, I doubt whether Reg 32A(1)(c) [DWP has requested a further sick note] is satisfied.  After all, why would DWP request a sick note if client is currently not entitled to ESA and receiving JSA?  But even if one has been requested, I think the client’s MR application re the FTA is evidence that she is still interested in having her LCW determined (once the issue of the FTA is resolved in her favour) sufficient to satisfy Reg 32A(1)(d)(ii) and, therefore, prevent the DM using Reg 32A to stop the re-instated ESA.

I’ve never checked but I wasn’t aware ESA was being backdated, upon the lodging of a WCA appeal, to the date the ESA originally stopped.  CPAG refers to a written answer to the House by the government but I wonder whether that is what is happening in practice.  I had thought ESA pending appeal commenced only from the date of lodgement of the appeal but I could be wrong. 

Faced with the choice between using the EPS and claiming ESA pending appeal where available, I’d opt for the latter and bank the former.  You might need the EPS, for instance, if you lose the WCA appeal and have to claim JSA whilst waiting for a further WCA or WCA appeal.  Although I appreciate that some people may need the EPS immediately whilst waiting for the ESA recon to take place.  I think the linking rule in Reg 5 ESA Regs which attempts to treat an EPS as an award of ESA for linking purposes is also messy.  Still trying to get my head round it tbh.

Good point about the extended period of sickness Paul if the claimant is struggling on JSA - tho if the jobcentre are being OK about and not putting undue pressure on pending the MR it may not be necessary.

And Tom - I have never had problems getting the ESA backdated if there are fit notes to cover the period - obviously if the claimant has been on JSA there isn’t any financial gain - but if they haven’t then it can be helpful.

In unhindered by talent’s case I think you might need the fit notes as if the appeal is ultimately successful the whole period will still be in the assessment phase so fit notes would be needed.

Daphne - 02 June 2016 11:20 AM

In unhindered by talent’s case I think you might need the fit notes as if the appeal is ultimately successful the whole period will still be in the assessment phase so fit notes would be needed.

Obviously she’ll need sick notes if the ESA is re-instated.  The OP was asking about the timing of putting them in. 

As far as backdating ESA in pending WCA appeals is concerned, the legal basis of backdating to the start is dubious although it’s obviously good if arrears are routinely being paid to that point.

So am I right in thinking that even after 6 weeks, I can send in the sick note(s) and the fact of them being more than 6 weeks late would not mean she has to make a new ESA claim? That it would just be reinstated if the MR is accepted? Thanks so much for the replies folks,

UPDATE:

The client (of her own volition), took the sicknote to Jobcentre last Friday and they knocked her off JSA! My thought now is that she should ask for an ESP to still be paid JSA.

unhindered by talent - 06 June 2016 10:46 AM

UPDATE:

The client (of her own volition), took the sicknote to Jobcentre on Friday and they immediately knocked her off JSA! My thought now is that she should ask for an ESP to still be paid JSA.

i had vaguely wondered if that might happen when i first read this thread

:-(.

clearly in JSA terms they are right as she isn’t fit to work

one of the many reasons the system isn’t fit for purpose…

Waaah :-(

I think she should ask for an ESA though