Claiming ESA and JSA simultaneously

Just wanted to check if the following strategy is possible -

My cl’s ESA has been ended on grounds of failure to attend medical. He had failed to attend two previous medicals and good cause been accepted but the third time he had submitted an MR which has been unsucessful. I am appealing the decision to end his ESA on grounds of failing to provide good cause etc. and then intend to ask for a paper based assessment if appeal is successful. He is under mental health services and has a care co-ordinator/CPN so no problems getting evidence.

I am also going to see him this pm to put in a new ESA claim but because he is not going to get paid until he attends a medical (and limited capability of work agreed) can he also claim JSA pending the medical and immediately present a sick note so would not have to sign on etc under extended period of sickness rules.

I forsee difficulties in trying to effectively claim ESA and JSA at the same time so would like to establish if it is possible before presenting cl with his options if he has to choose one or the other.

Cl has serious mental health and substance abuse issues so claiming JSA even with restrictions on availability is not going to be a realistic option

Thanks for any clarification of the above this morning if possible

Some recent issues around extended periods of sickness on JSA discussed DWP do not consider Extended Period of Sickness applicable for clients claiming JSA after DWP deems them ‘fit for work’

Yes, it is possible to claim JSA whilst waiting for outcome of MR on ESA entitlement but it’s not entirely clear how or why and it doesn’t come without problems often, I think this post from Daphne represents latest statement from DWP on the issue.

We have had a similar situation, although our client had already claimed JSA after ESA stopped following non-attendance at medical.  We are outside the time limit to submit an MR but will try anyway.  Our idea was to submit a new claim for contribution-based ESA only based on the same health condition.  Our client won’t meet NI conditions but a work capability assessment will still be completed.  This way income-related ESA claim won’t clash with ibJSA.  The only problem we envisage is if the client’s work coach gets wind of the ESA claim and makes a decision that the client is declaring he is not available for work.  The 13-week extended sickness period could come into play in this scenario though.

Any views on this?

Is it going to help that in this case the decision is a failure to provide good cause for failing to attend rather than being found fit for work?

And also does not para 20973 of the dwp guidance rule out therefore - although it is written in a rather back to front manner - claiming ESA again whilst also claiming JSA and asking for extended sickness grounds

Jacky Philipson - 16 December 2016 11:09 AM

Is it going to help that in this case the decision is a failure to provide good cause for failing to attend rather than being found fit for work?

The new form of reg 30 doesn’t bite deemed capacity for failure to attend or failure to return an ESA50.

Edit; the regulation 55ZA holds that for an EPS the claimant “...(e)  has not stated in writing that for the period of his disease or disablement he proposes to claim or has claimed an employment and support allowance or universal credit. ..”