Permitted work moving from Support group to WRAG Does the 52 weeks start again??

Hi a query we are not sure on . A person has been undertaking permitted work for over 1 year whilst in the Support group.

If after an assessment she is placed in WRAG will the previous time spent undertaking permitted work whilst in the support group be ignored? Or will she be told as she has worked more than 52 weeks she can no longer qualify under PW rules unless there is the break in claim? Will she be able to start a fresh 52 week period?

Any thoughts appreciated. I am aware the government indicated in March they want to abolish the 52 week limit but this is still not law at present.

Many thanks

Unfortunately, my reading of regulation 45 suggests that the permitted work stops immediately.

Reg.45(4) and (4A) of the ESA Regs 2008 (which defines one of the types of permitted work in respect of reg.40) states:

(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

(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.

Para.9A doesn’t affect anything here, but para.10 does – that specifies that “specified work” means work done in accordance with paragraph (4).

So your client has previously been able to do the work under reg.45(b) and this is “specified work” as per para.10, so as soon as your client moves to the WRAG and thus falls under reg.45(a).

Because of the operation of para.4A, her period of specified work under para.4 as a whole clearly has reached the 52 week limit (even though, to date, it’s been under the support group exemption strand) and thus she cannot continue, unless she leaves ESA for 12 weeks, or has a 52-week break.

That’s my reading of it I’m afraid.

I see where you’re coming from Paul, however, I’m not so sure. 

There’s no doubt that work done under Reg45(4)(b) is “specified work” and done, at least initially, within “a period of specified work”.  However, the latter ends after 52 weeks by virtue of (4A) and I’m not sure a new period can start if the claimant continues doing the same specified work that remains exempt under (4)(b).  That’s because they’ve already done their “first day” of specified work for the purposes of (4A) so there seems nothing for a new 52 weeks to run from.

I appreciate it turns on how “first day” is construed in (4A).  It certainly means the first day that the specified work exempted under (4)(b) was ever undertaken but is it also capable of meaning the first day after the expiry of 52 weeks on which such exempted work continues to be done, ie, day 366 = a new “first day”?  I think (4A) presupposes that the latter scenario won’t arise because it is drafted for the purpose of para (4)(a) and the person would have to end the permitted work under the latter after 52 weeks or risk losing their ESA entitlement.  Hence, a proper new “first day”, ie day 1, would be inevitable if the person ever wanted to do permitted work again.  It’s arguable then that the claimant whose basis of permitted work is (4)(b) does not start a new period of specified work when the first period ends after 52 weeks.  Day 366 onwards would continue to be specified work but would no longer be in a period of specified work.

The client in the OP has been doing the permitted work for more than a year.  If in future they move from SG to WRAG, they’d have to look to 4(a) to continue to exempt the work that had until then been exempted by (4)(b).  I agree that it’s likely that the permitted work would end immediately as they’d appear not to satisfy any of the conditions in (4)(a).  However, if they’d been doing permitted work under (4)(b) for, say, 22 months, they’d only have to wait 2 months before being able to satisfy (4)(a)(iii) given their last period of specified work would have ended 10 months’ ago.  They’d then get another 52 weeks of permitted work whilst in the WRAG.

It does seem necessary to stop doing the job even for a short time in order to take advantage of the above apparent loophole.  For instance, if a person who’d done 25 months of permitted work under (4)(b) was demoted to the WRAG, they wouldn’t seem to satisfy 4(a)(iii) despite their last period of specified work ending 13 months ago.  That’s because in order to satisfy (4)(a) you must be in a period of specified work and they would continue not to be in one for as long as they persisted in the same permitted work.

Thanks Tom, something about 4(A) has been nagging me too. Let me sleep on it.

Thanks Very much it looks like it will be worth challenging.

I think that Tom may have a point insofar as the need to look at how long your client has done specified/premitted work for as SG claimant. If it’s more than 24 months, you could argue that this period of specified work is, through the operation of reg.45(4A), necessarily limited to 52 weeks from the point at which she started that work.

Therefore when your client moves from reg.45(4)(b) to 45(4)(a) provisions, she must satisfy reg.45(4)(a)(iii) and can have another 52 week period start from the point of change.

If she’d worked for less than 24 months, then I’d also agree with Tom that a break of however many months to reach that milestone would be necessary before another period of 52 weeks could begin. Let us know how you get on.