× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

Income based ESA and Education. PIP (Appeal pending)

Sharon M
forum member

Derbyshire County Council

Send message

Total Posts: 68

Joined: 23 March 2011

Sorry if this is rushed and confused, but about to go out and it only landed on me this morning. It’s that WR Friday curse.

Client (over 19) is about to start a, what they believe is considered full-time education (they are going to get more details from college about expected hours, so may differ) where entitlement to income based ESA appears to be reliant on either DLA or PIP being in place. Recently went from DLA (HRC LRM) to zero PIP after completed claim without support. Turned down for PIP so MR put in with help and evidence. Only 5 points on MR awarded so appeal about to go in (I really don’t see a problem getting PIP awarded as poor decision and plenty of medical evidence for tribunal to consider).

Can anyone advise on how ESA will view this while we await tribunal date and outcome? Client states that he has been advised by DWP that he will not be awarded ESA while DLA or PIP not in payment and is therefore refusing to start course following this advice as this is the only way he can get money to live on. I can’t get through to ESA to speak to anyone and about to go out. Is there any concessions for people to still be paid ib ESA in full-time education while awaiting an appeal decision for PIP? Seems such a shame to have education scuppered by a terrible MR decision. I must admit my ESA with Education knowledge isn’t the best…and it’s Friday.

Thanks for any answers/help to this and apologies for me not responding today, but will read later.

[ Edited: 12 Aug 2016 at 01:54 pm by Sharon M ]
NAI
forum member

Unclaimed Benefits Campaign, Middlesbrough CAB

Send message

Total Posts: 131

Joined: 12 January 2015

Sharon M - 12 August 2016 01:51 PM

Sorry if this is rushed and confused, but about to go out and it only landed on me this morning. It’s that WR Friday curse.

Client (over 19) is about to start a, what they believe is considered full-time education (they are going to get more details from college about expected hours, so may differ) where entitlement to income based ESA appears to be reliant on either DLA or PIP being in place. Recently went from DLA (HRC LRM) to zero PIP after completed claim without support. Turned down for PIP so MR put in with help and evidence. Only 5 points on MR awarded so appeal about to go in (I really don’t see a problem getting PIP awarded as poor decision and plenty of medical evidence for tribunal to consider).

Can anyone advise on how ESA will view this while we await tribunal date and outcome? Client states that he has been advised by DWP that he will not be awarded ESA while DLA or PIP not in payment and is therefore refusing to start course following this advice as this is the only way he can get money to live on. I can’t get through to ESA to speak to anyone and about to go out. Is there any concessions for people to still be paid ib ESA in full-time education while awaiting an appeal decision for PIP? Seems such a shame to have education scuppered by a terrible MR decision. I must admit my ESA with Education knowledge isn’t the best…and it’s Friday.

Thanks for any answers/help to this and apologies for me not responding today, but will read later.

In my experience, this is a fraught area. I have had cases where even though the student has a current entitlement to PIP, the DWP insist on treating the claim as it would a “normal claim”: assessment phase, ESA-50, Work Capability Assessment, decision. In fact, Regulation 21 (3) ESA Regulations 2008 specifically excludes the information requirement and Regulation 23 only applies “Where it falls to be determined whether a claimant has limited capability for work…”. For a student in non-advanced full time education receiving PIP or DLA, it doesn’t.

We had a case similar to yours where the DWP persisted in the WCA route even after a disallowed PIP claim was successfully appealed. The ESA claim was made on the same day as the PIP and was processed in the normal way (as at that time the client didn’t actually receive PIP).

Eventually we requested an MR (client failed WCA) and then appealed the ESA decision. The appeal response failed to address the grounds for appeal (Regulation 33(2)) and actually referenced some incorrect legislation. We followed this with a submission and eventually a wise and informed decision maker revised before a hearing took place.

I would suggest that your client makes the ESA claim anyway and MR then appeal any adverse decision. Ask the tribunal for the ESA appeal to be considered after a determination of the PIP appeal, preferably straight after the PIP hearing. By putting in the ESA claim now, your clients rights to the benefit will be preserved.

I hope I haven’t confused you.

Sharon M
forum member

Derbyshire County Council

Send message

Total Posts: 68

Joined: 23 March 2011

NAI - 12 August 2016 02:35 PM

In my experience, this is a fraught area. I have had cases where even though the student has a current entitlement to PIP, the DWP insist on treating the claim as it would a “normal claim”: assessment phase, ESA-50, Work Capability Assessment, decision. In fact, Regulation 21 (3) ESA Regulations 2008 specifically excludes the information requirement and Regulation 23 only applies “Where it falls to be determined whether a claimant has limited capability for work…”. For a student in non-advanced full time education receiving PIP or DLA, it doesn’t.

We had a case similar to yours where the DWP persisted in the WCA route even after a disallowed PIP claim was successfully appealed. The ESA claim was made on the same day as the PIP and was processed in the normal way (as at that time the client didn’t actually receive PIP).

Eventually we requested an MR (client failed WCA) and then appealed the ESA decision. The appeal response failed to address the grounds for appeal (Regulation 33(2)) and actually referenced some incorrect legislation. We followed this with a submission and eventually a wise and informed decision maker revised before a hearing took place.

I would suggest that your client makes the ESA claim anyway and MR then appeal any adverse decision. Ask the tribunal for the ESA appeal to be considered after a determination of the PIP appeal, preferably straight after the PIP hearing. By putting in the ESA claim now, your clients rights to the benefit will be preserved.

I hope I haven’t confused you.

Hi, sorry, I wasn’t clear. The client is already in receipt of ib ESA. It’s the failure of the PIP claim that has put the course or ESA into jeopardy,  as he can only get ib ESA if he is in receipt of DLA or PIP. He was in receipt of DLA but failed to get PIP in the transfer. I was wondering if he could continue to receive it and remain in education while we wait for PIP appeal decision. I’ve had conflicting advice from DWP since then.

Thanks for reply.

Jane OP
forum member

The National Autistic Society, Welfare Rights, Nottingham

Send message

Total Posts: 161

Joined: 13 January 2011

If he starts FT ed I don’t think the irESA can be paid once the DLA has ended pending the PIP appeal, he needs to actually be awarded the PIP to be classed as a disabled student as per reg 18 of the ESA regs.

My only suggestion is to see if the college would let him start on a part time basis whilst you try to get the PIP sorted.

Jane

Sharon M
forum member

Derbyshire County Council

Send message

Total Posts: 68

Joined: 23 March 2011

Jane OP - 16 August 2016 01:29 PM

If he starts FT ed I don’t think the irESA can be paid once the DLA has ended pending the PIP appeal, he needs to actually be awarded the PIP to be classed as a disabled student as per reg 18 of the ESA regs.

My only suggestion is to see if the college would let him start on a part time basis whilst you try to get the PIP sorted.

Jane

I think that sounds about the best outcome. It’s given me a reason to try and hurry the tribunal hearing as well. Thank you