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Forum Home  →  Discussion  →  Conditionality and sanctions  →  Thread

DWP do not consider Extended Period of Sickness applicable for clients claiming JSA after DWP deems them ’fit for work’

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Andrew Dutton
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I have taken up this argument with DWP and pointed out that Reg 55ZA does not appear to say what they want it to say.

They have reiterated their position and claimed that JSA Reg 55ZA(1)c(i) supports their position.

My reply:

The interpretation that appears to be operating is that Regulation 55ZA excludes an EPS for anyone who was previously on ESA and who is disputing the WCA decision while perforce they are on JSA, unless they have a new or significantly worsened health condition.

I don’t think that Reg 55ZA(1)c(i) says what the policy people claim it says at all. If the person had a new/significantly worsened condition, they could just claim ESA.

I agree that EPS cannot apply to someone who is expected to be ill for more than 13 weeks or whose current illness has exceeded 13 weeks since an EPS started, and I agree that a new claim for ESA will only be successful if the revised Reg 30 is satisfied and there is a new condition etc.

I cannot see how any of this can be stretched to exclude people disputing WCA decisions as above.

Reg 55ZA looks at the current situation and what period of sickness is expected now and in the future.

The Regulation appears to be entirely forward-looking, with no reference to previous benefit claims. Its first requirement is that JSA must be payable, so the claimant has been found fit for work and capable of work.

So any previous period of sickness is at an end for the purposes of JSA, whether or not the claimant is disputing the WCA, and any new period of sickness must be dealt with according to whether it is above or below 2 weeks, and whether or not it is expected to exceed 13 weeks.

I also cannot see how the ‘new/significantly worsened condition’ requirement can be applied to EPS, as it is wholly absent from the JSA Regulations.

Andrew Dutton
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I’ve exchanged views with DWP but haven’t got far. I’ve been invited to write to their lawyers, could people help me to shape an argument?

The intention, say DWP, in bringing in EPS was to help JSA claimants who were previously fully fit, not former ESA claimants who are disputing a WCA decision.
I think that DWP’s intention and the actual wording of the Reg are too far apart and that 55ZA can’t do the job for them.

DWP argue that the ‘past tense’ wording of 55ZA (c) (i) ‘declares that he has been unable to work’ and also the wording ‘has claimed’ in (e) refer to a past period, i.e. the previous ESA claim, and exclude such claimants from EPS.

But if that line is taken, why does the reference to the past tense stop at the most recent ESA claim? Why not exclude anyone who has been ill and claimed ESA, ever???

The fit-for-work decision stands in the way. According to DWP’s own Decision Maker, the claimant is capable of work and must claim JSA. Their period of sickness is over.

If it is not ‘over’, then surely DWP are treating someone as simultaneously capable and incapable of work – which is absurd

To satisfy 55ZA, JSA must be in payment - therefore according to DWP the claimant is fit for work.

I think that 55ZA(c)(i) starts with the JSA claim and does not look backwards.

The wording ‘has been unable to work’ surely refers to inability to work within the period of that JSA claim, i.e. to allow for when the claimant is perhaps not reporting their illness on the very first day. What matters is the duration – more than 2 weeks, fewer than 13.

Similarly, the wording in (e) must surely be with reference from the beginning of the JSA claim and excludes from EPS anyone who has made (since the JSA claim) or ‘proposes’ to make a claim for another benefit to deal with their current situation, e.g. someone who can show proof of a new or significantly worsened condition can make a new claim for ESA and who will not have to bother with JSA any longer.

Any other construction, as far as I can see, allows DWP to take away someone’s ESA and find them fit for work, refuse a new ESA claim unless there is a new/significantly worsened condition, and also disallows an EPS for a person who is officially fit for work but has a past record of illness, which is surely unjust.

Paul_Treloar_AgeUK
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I’d agree about the absurdity of someone being similtaneously fit for and unfit for work (although it’s actually about having limited capability for work, which is less precise of course).

However, I would say that 55Z(c)(i) is in the past tense simply because it envisages the claimant reporting the temporayr sickness when they sign on at their two-weekly signing session.

On -  (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. - it is clear that this isn’t the previous period of sckness for the ESA claim for the reasons you note and because of the operation of:

(d) during the period of his disease or disablement,  satisfies the requirements for entitlement to a jobseeker’s allowance other than those specified in section 1(2)(a), (c) and (f) (availability for and actively seeking employment and capable of work or not having limited capability for work);

(d) clearly deals with a period of sickness or disabledment during the JSA claim, thus that carries into (e). This is given weight as you note by the requirement at (a) to have claimed JSA.

Provided a new med cert is provided, I can’t see how they can swerve on this one.

[ Edited: 24 Jan 2017 at 08:45 pm by Paul_Treloar_AgeUK ]
Peter Turville
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The DWPs position illustrates the absurdity created by not thinking through the policy intent alonside existing provisions.

The EPS was introduced with the policy intention of reducing the administrative burden of claimants having to transfer from JSA to ESA for short periods of time. However an earlier policy intention (introduction of MR)increased the administrative burden of claimant going in the opposite direction from ESA to JSA having been found ‘fit for work’ (not assisted by the amendments to ESA Reg 30). I would assume EPS is applicable in much greater numbers to those going from ESA to JSA during the MR period than would, but for EPS, go from JSA to ESA temporarily. The SSWP clearly did not foresee the policy implications for claimants going from ESA to JSA during MR (or is responsible for the pooor drafting of the EPS amendment if he did)!

It is the same SSWP that determines a claimant to be ‘fit for work’ (not to have ‘limited capability for work’) - a determination which then applies to all benefits inc. JSA - that has to be satisfied that the same claimant “is unable to work on account of some specific disease or disablement” for the purposes of 55ZA. ‘Satisfied’ as defined by the further provisions in 55ZA

In most cases it is likley to be the same “specific disease or disablement” that is being considered. 55ZA does not define ‘the period of his disease or disablement’.

I agree with Paul’s argument.

Would DWP try to argue that 55ZA could be read so that the past period of (the same) ‘disease or disablement’ and the determination that the person is ‘fit for work’ means that the SSWP cannot now be satsified for the purposes of (1)(b) that the claimant is unable to work even if s/he complies with (2)?

Would DWP even try to argue that an MR against the ‘found fit’ decision can be interpreted as being a statement in writing that that for the period of the disease or disablement s/he proposes to claim or has claimed ESA or UC (which really would be stretching interpretation!)?

I foresee a UT decision in due course which refers to Kafka or even Monty Python.

SocSec
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today 02 03 17 the local jobcentre has told us no claimants will be accepted for extended sickness if they have appealed the wca , they say they have ‘internal guidance’ but refused to show me a copy of it at he meeting er had with them today. are they telling us the whole story and wheer can I find the gudance please

Andrew Dutton
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It’s a ‘gatekeeper’ memo - copy sent to you by RN message system , hope it helps. I am still awaiting a reply from DWP lawyers to my not very lawyer-ly challenge to their interpretation of the regs.

SocSec
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Hi andrew, thanks for the message, it says jsa regs say that if claimant has been getting esa for 13 weeks the eps doe snot apply, do we know exactly which jsa regs say that ?

Thanks

John

Andrew Dutton
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they say it’s in JSA Reg 55ZA. It is not, as far as i’m concerned, it doesn’t say anything of the sort.

I’ve said this to DWP:

My concern revolves around the DWP guidance that the Extended Period Of Sickness brought in via JSA Regulation 55ZA is not intended for people who are claiming JSA because they have been found ‘fit for work’ (to have no Limited Capability for Work) following a work capability assessment - and who is disputing that decision.

The claimant in this situation is of course not allowed to claim ESA while Mandatory Reconsideration proceeds and may only return to that claim if and when an appeal is lodged (and a new ESA claim is not possible unless there is a new condition or an existing condition has become significantly worse).

As I understand it, DWP regards the ESA ‘fit for work’ decision sufficient to regard all claimants as meeting the eligibility criteria for Jobseeker’s Allowance, although the intention is that the JSA Claimant Commitment should be adapted to take limitations on job-seeking ability caused by illness/disability to be taken in to account.

The position seems clear - this is a JSA claim and the previous ESA claim is at an end.

To satisfy Regulation 55ZA, JSA must be in payment – so the claimant meets the Labour Market Conditions.

The Regulation then requires the claimant to furnish evidence, should they become ill, to allow an Extended Period Of Sickness in the event that this period should be over 2 weeks but expected to be below 13.

I can see nothing in Regulation 55ZA which refers to a previous period in receipt of ESA and which excludes claimants from having EPS.

I have been pointed to the ‘past tense’ wording of 55ZA (c) (i): ‘declares that he has been unable to work’ and also the wording ‘has claimed’ in part (e) and I am advised that these refer to a past period, i.e. the previous ESA claim, and exclude such claimants from EPS.

I cannot see that the legislation makes reference to anything other than events following the establishment of the JSA claim.

The ESA fit-for-work decision surely stands in the way of any other interpretation. According to DWP’s own Decision Maker, the claimant is capable of work and must claim JSA. Their period of sickness is at an end, regardless of their own or their GP’s view on the matter.

If the period of sickness is not at an end, then surely DWP are treating someone as simultaneously capable and incapable of work – which is absurd.
The wording ‘has been unable to work’ surely refers to inability to work within the period of that JSA claim, i.e. to allow for when the claimant is perhaps not reporting their illness on the very first day – for instance at their next Jobcentre appointment.

Similarly, the wording in (e) must surely be with effect from the beginning of the JSA claim and excludes from EPS anyone who has made (since the JSA claim) or ‘proposes’ to make a claim for another benefit to deal with their current situation, e.g. someone who can show proof of a new or significantly worsened condition can make a new claim for ESA and who will not have to bother with JSA any longer.

Whatever the DWP’s policy intention, I do not think that the wording of Reg 55ZA bears out the interpretation that has been imposed upon it.

SocSec
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is it worth asking our MP to get it clarified, or would that muddy the water more ?

Andrew Dutton
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I don’t think anything could make it more muddy!

Just noticed that my email to DWP needed a last edit to take out some repetitions before sending, curses!

Andrew Dutton
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Greetings all -

Good news: I’m advised that after my tirade to DWP and this service raising the matter in DWP liaison , a new lawyer has looked at the matter and they agree with our interpretation of the Regs.

‘Further instructions to DWP staff are currently being drafted to clarify the policy position.’


I’m quite pleased, all in all….

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Andrew Dutton - 03 March 2017 11:30 AM

Greetings all -

Good news: I’m advised that after my tirade to DWP and this service raising the matter in DWP liaison , a new lawyer has looked at the matter and they agree with our interpretation of the Regs.

‘Further instructions to DWP staff are currently being drafted to clarify the policy position.’

I’m quite pleased, all in all….

Brilliant!!

Peter Turville
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top of the class!!!

Paul_Treloar_AgeUK
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Andrew Dutton - 03 March 2017 11:30 AM

Greetings all -

Good news: I’m advised that after my tirade to DWP and this service raising the matter in DWP liaison , a new lawyer has looked at the matter and they agree with our interpretation of the Regs.

‘Further instructions to DWP staff are currently being drafted to clarify the policy position.’


I’m quite pleased, all in all….

nice one Andrew, that’s made my weekend.

SocSec
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I was just drafting my own tirade to our local MP, I will shred that now, please keep us informed of progress as I feel my local job centre may be slow to act on this one, I met them last week and they were quite cocky about implementing the ” new revised rules ” and won’t concede gracefully.

Well done Andrew