Forum Home → Discussion → Work capability issues and ESA → Thread
ESA WRAG clt with baby due tomorrow
Hi,
My client is in the WRAG and is on the Work Programme with Maximus. She’s pregnant and her due date is tomorrow. The Work Programme adviser had put in her Action Plan that she was to claim Income Support.
I have explained to him that this is not in my client’s best interests because she would be:
(a) worse-off on Income Support
(b) is part of a couple so would only be short-term
(c) would have to reclaim ESA undergo another medical and lose the WRAG component
The WP adviser is adamant that there’s no flexibility and she’ll still have to come in for regular face to face.
Is she stuck on the WP now, or is there anyway she can be brought back to the JCP ‘offer’ for Work Focused Interviews there instead?
As my client’s husband has no recourse to public funds he can’t claim JSA for them.
Any advice much appreciated.
Thank you
I think thats called ‘fettering of discretion’ ‘Irrational and ‘unreasonable’ all of which are potentially judicial reviewable
see CPAG ask on this
http://www.cpag.org.uk/content/ask-cpag-online-how-can-you-avoid-esa-‘work-related-activity’-sanction
It is definitely worth challenging - certainly by way of complaint
(Though not sure about being brought back to JCP offer) Your WPP adviser certainly has the power to ‘waive, postpone or rearrange an activity’ if it wouldn’t be appropriate or reasonable at any given time (see PP 74 and 75 of chapter 3a of the WPP provider Guidance)
and also must ensure that any requirement to undertake WRA should be reasonable having regard to your clients circumstances
(See reg 3(4) (WRA) Regs 2011)
The Work Prog provider guidance
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/505310/wp-pg-chapter-3a.pdf
also sets out that before mandating a participant to do something the WPP must ensure that ‘the activity is reasonable in the participants circumstances’ para 4
When deciding whether something is reasonable the provider must consider
“the participants personal circumstances such as any health conditions, ability to use transportation, skills /education, any child care responsibilities the participant may have etc. These examples are not exhaustive”
PLP is also currently running a project which aims to develop an approach to strategic response to issues of unfairness – discrimination or illegality in benefit sanctioning and they are keen to talk to WR organisations who encounter people who have been or are liable to be sanctioned.
Might be an idea to contact them??