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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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John Birks
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IME these problems occur when a claimant tries to make the claim for JSA and the EPS at the commencement of the claim. i.e. not ASE.

Best advice IMO is to lodge the claim and once the claim is in payment submit a sick note if rqd.

This is not to say that some claims will be accepted at a lower threshold but then you’re relying on the goodwill of the officer taking the claim to interpret the regs in a way which is favourable to the claimant.

The regs appear to me to require a claim to be in place before an EPS.

The amendments may allow JSA claimants to >>>> remain<<<<< entitled to JSA despite being unable to work due to illness for a period of up to 13 weeks.

Also the info on expectation of being unable to work for 13+ weeks also applies.

Dan_Manville
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CANcan - 24 November 2016 04:40 PM

Yes there seems to have been a recent clamping down on this - one of our clients was told that there had been a “change as of 7 November” that an EPS when claiming JSA following WCA disallowance is no longer acceptable. I’ve been unable to find anything in writing to this effect so far though so perhaps this has just been transmitted to Jobcentre Staff by some other means…

I wonder whether this is regional. When I made my comment above I’d discussed it with the WC the very same day. They’re certainly still accepting EPS round these parts.

Andrew Dutton
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I have now been advised in writing that ‘we cannot allow [the claimant] an extended period of sickness after failing her work capability assessment unless her condition has significantly worsened or she has a new health condition’.

DWP staff appear to have been given this in the form of guidance.

We have also been told that this is in the JSA Regs.  No references were given but we’ll ask for them!

[ Edited: 29 Nov 2016 at 04:08 pm by Andrew Dutton ]
Peter Turville
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Paul_Treloar_AgeUK - 25 November 2016 04:13 PM

I wouldn’t be at all surprised if you’re correct Peter, but that doesn’t override the legislation as it stands, so provided medical evidence is supplied and the person states that they don’t expect their illness to last longer than 13 weeks, I can’t see how they can refuse it?

On a similar tip, when I went to sign on as a student in the summer holidays back in the 1980’s (oh those were the days), I was asked would I take any job I was offered. “Of course not”, I replied, “I’m going back to college in 3 months”. The clerk told me that if I said no, then I wouldn’t get my UB paid. I said “yes of course”, she smiled, and that was that.

One would hope that JCP staff might be similarly inclined to support people clearly struggling to manage but this thread suggests not….

But Paul ‘those were the days’ (I had to tell my former colleagues how to assess my Supp Ben student claim as I was the one in the office who used to assess all the student claims!).

I take your point about the claimant declaring that they don’t expect to be unable to work for more than 13 wks - however I’m not sure these days work coaches will turn a blind eye to such a little white lie?

Had a further response from our local partnership team - apparently there has been an internal memo but it can’t be disclosed - it is said to emphasis Reg 55ZA(1)(a) ‘has been awarded a jobseeker’s allowance’.

In other words? - the claimant has to go through the full JSA claim process including a claimant commitment (under full conditionality requirements - subject to the usual negotiated reduced requirements) before the claimant can request an EPS (which would then ‘suspend’ the requirements of that commitment)?

They have also (in effect) refer to (2)(e) & (3) suggesting that this disapplies EPS if there has been a previous award of ESA - ’ ...... that for the the period of his disease or disablement ...... has claimed ESA or UC.’ I guess they are trying to imply that if the EPS is requested for the same disease or disablement for which the claimant had been awarded ESA prior to being ‘found fit’ then an EPS cannot apply. I find it difficult to read (e) as applying retrospectively in this way.

I expect we will now see all sorts of ‘interesting’ interpretations / applications of Reg 55ZA in the ‘found fit’ senario across different Jobcentres in practice.

Andrew Dutton
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Is that 1(e)?

1(e) reads as if it is describing someone who is remaining on JSA and NOT stating intention to claim or actually making a new claim ESA or UC. I can’t see that it refers to a previous ESA claim, in any way.

I can see that 1(a) requires an award of JSA so yes, the claimant may have to go through that malarkey first.

What’s all this with the ‘we’ve got guidance but you can’t see it’ stuff???

Mike Hughes
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John Birks - 25 November 2016 04:15 PM

IME these problems occur when a claimant tries to make the claim for JSA and the EPS at the commencement of the claim. i.e. not ASE.

Best advice IMO is to lodge the claim and once the claim is in payment submit a sick note if rqd.

This is not to say that some claims will be accepted at a lower threshold but then you’re relying on the goodwill of the officer taking the claim to interpret the regs in a way which is favourable to the claimant.

The regs appear to me to require a claim to be in place before an EPS.

The amendments may allow JSA claimants to >>>> remain<<<<< entitled to JSA despite being unable to work due to illness for a period of up to 13 weeks.

Also the info on expectation of being unable to work for 13+ weeks also applies.

Interesting. I had been following this thread on the assumption that’s what we were all doing. I thought it fairly clear that a JSA claim had to be in payment before EPS would succeed. Certainly had no-one I’ve advised to do that come back and say it didn’t work.

Peter Turville
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Andrew Dutton - 02 December 2016 02:37 PM

Is that 1(e)?

What’s all this with the ‘we’ve got guidance but you can’t see it’ stuff???

Yes, sorry, typo! Requires a FOI request.

ROBBO
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I’ve heard mention of a gatekeeper memo issued a few weeks ago.  Of course I have not seen it.

That sounds like the one for the FOI request…

Dan_Manville
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Dan_Manville
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bump

reply’s up; not got time to read it atm

[ Edited: 16 Dec 2016 at 01:53 pm by Dan_Manville ]
Paul_Treloar_AgeUK
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I think their guidance is (surprise surprise) wrong basically.

Regulations as amended has the following (my emphasis):

55ZA.—(1) This regulation applies to a person who—
(a)  has been awarded a jobseeker’s allowance;
(b)  proves to the satisfaction of the Secretary of State that he is unable to work on account of some specific disease or disablement;
(c)  either—
(i)  declares that he has been unable to work, or expect to be unable to work, on account of that disease or disablement for more than 2 weeks but he does not expect to be unable to work on account of that disease or disablement for more than 13 weeks; or
(ii)  is not a person to whom regulation 55(1) (short periods of sickness) applies by virtue of paragraph (3) of that regulation;
(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); and
(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.

DWP guidance has the following:

The JSA Regulations state that, if a person says that they have claimed ESA for a continuous period of at least 13 weeks during which the person has, and continues to be, unable to work,the EPS provisions do not apply.

That isn’t what the regulation says at all - the effect of 55ZA(e) is clearly in respect of the on-going JSA claim, not any previous ESA claim. It requires the claimant not to have stated in writing that they are going to claim ESA with the new medical certificate, or not to have actually claimed ESA at that time. That’s why the bolded section above is important - it is in relation to the current period covered by the current medical certificate. Utter nonsense in my opinion.

Mark of Carnage
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Yesterday a client told me JSA adviser told them they had to be on JSA for 13 weeks before they could go on the sick on JSA..

BC Welfare Rights
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Not directly relevant to this question but I have also received the attached guidance recently via FOI

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Andrew Dutton
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Paul_Treloar_AgeUK - 16 December 2016 11:28 AM

I think their guidance is (surprise surprise) wrong basically.

Regulations as amended has the following (my emphasis):

55ZA.—(1) This regulation applies to a person who—
(a)  has been awarded a jobseeker’s allowance;
(b)  proves to the satisfaction of the Secretary of State that he is unable to work on account of some specific disease or disablement;
(c)  either—
(i)  declares that he has been unable to work, or expect to be unable to work, on account of that disease or disablement for more than 2 weeks but he does not expect to be unable to work on account of that disease or disablement for more than 13 weeks; or
(ii)  is not a person to whom regulation 55(1) (short periods of sickness) applies by virtue of paragraph (3) of that regulation;
(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); and
(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.

DWP guidance has the following:

The JSA Regulations state that, if a person says that they have claimed ESA for a continuous period of at least 13 weeks during which the person has, and continues to be, unable to work,the EPS provisions do not apply.

That isn’t what the regulation says at all - the effect of 55ZA(e) is clearly in respect of the on-going JSA claim, not any previous ESA claim. It requires the claimant not to have stated in writing that they are going to claim ESA with the new medical certificate, or not to have actually claimed ESA at that time. That’s why the bolded section above is important - it is in relation to the current period covered by the current medical certificate. Utter nonsense in my opinion.

I followed Dan’s FOI request and I agree completely with Paul on this. they are giving the reg a meaning that it cannot possibly bear.  What steps can be taken?

Dan_Manville
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Andrew Dutton - 16 December 2016 02:03 PM

  What steps can be taken?

Appeal the sanctions and pursue to the UT would be one option. Lawyering up and JR of the CC would be another.

Maybe a sympathetic MP would be amenable to intervening.

[ Edited: 19 Dec 2016 at 11:48 am by Dan_Manville ]