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ESA restore after WCA appeal lodged (and JSA claimed in the interim)
Client is an EEA national and is having trouble evidencing her qualifying right to reside for HB purposes.
Unfortunately her move to a new LA area coincided with her being found fit for work and having to claim JSA. Her JSA claim was backdated to the date of her WCA decision so there is no issue of missing arrears for the recon period.
A late appeal has been lodged and she’s now back on ESA with her claim restored from the day after JSA ended.
I’d stupidly been thinking her ESA claim would be reopened from the date of the WCA decision and therefore passport her to HB entitlement from October but I guess the DWP are right with the restore date here? Since JSA was claimed in the interim and the WCA decision hasn’t actually been changed?
Many thanks
Jenny
My understanding is that if JSA claimed, the difference is calculated and awarded on acceptance of tribunal - backdated to decision date. Please correct me if I’m wrong - but as you point out, RTR as jobseeker will not entitle you to HB, so should she have a RTR entitling her to ESA then, yes HB can be awarded, though LAs and DWP make independent RTR decisions so she may still have to evidence RTR to the LA
Easiest thing here would be to point out to the LA that the JSA was in fact awarded on the basis of retained worker status;
- DWP practice is always to award new claims for JSA on the ‘easiest’ basis - so those with retained worker status or even a permanent RtR will see JSA awarded as a ‘jobseeker’.
- but she was getting ESA before the WCA decision and the JSA claim. And now the WCA appeal has succeeded she’s getting it again. You can’t get ESA as a jobseeker - you need some other RtR - retained worker status, family member of a worker, permanent RtR, whatever…...
- logically then - and regardless of the basis on which the DWP awarded JSA - she’s had that same status throughout.
and hope there’s someone there who will understand this.