Should client claim JSA whilst appealing ESA

He’d get the dp with JSA but is there then likely to be a problem with ESA payments if the appeal is upheld ?

Isn’t the issue that if your client claims JSA and his ESA appeal is successful, the regs prevent any ESA subsequently being payable for the JSA-payment period? I can’t remember the exact regulation, but I am fairly sure it’s been discussed on here before. So it would depend on whether the DP with JSA is greater or lesser than any extra ESA component.

It used to be a problem due to Reg 31 of the ESA Regs.  It was revoked from 1.10.10 so it shouldn’t be a problem now.  If ESA appeal successful then ESA award should just replace JSA award.

Tony

See Memo DMG 51/10 ( http://www.dwp.gov.uk/docs/m-51-10.pdf)  as follows:

JSA CLAIMANT TREATED AS NOT HAVING LCW

13 DMG 42281 explains that a person who claims JSA and has a reasonable prospect of employment is treated as not having LCW throughout the period of the JSA claim, even if it has been determined that they have, or are treated as having, LCW(1). From
1.11.10 this provision is revoked(2).

(1 ESA Regs, reg 31; 2 ESA (TP, HB & CTB) (EA) (No. 2) Regs, reg 1(2), 3 and 25(1); ESA (TP, HB & CTB) (EA) (No. 2) (Amdt) Regs, reg 3)

14 For periods before that date, the guidance is amended to say that it only applies in cases where
1.
a person claims JSA and
2.
a determination that the claimant has, or is treated as having, LCW was made before the JSA claim.

15 Where
1.
the claim for JSA was made following a determination that the claimant does not have, or is treated as not having, LCW and
2.
an appeal against the decision embodying that determination is allowed
the ESA award can be reinstated, the JSA award removed following revision(1), and
payment of JSA offset against arrears of ESA in the normal way.

(1 SS CS (D&A) Regs, reg 3(1)(a))

16 The guidance at DMG 42281 and Memo DMG 33/10 paragraph 43 is cancelled and should no longer be followed.

Cheers for your input everyone, it’s most useful

There seems to be a mistake in the Circular as it says that the regulation was revoked from 1.11.10 when in fact it was from 1.10.10 - see SI 2010/1907 - Reg 25 is the change and Reg 1 gives the commencement date as 1.10.10

If this works here are the links to the consolidated legislation: http://www.dwp.gov.uk/docs/a13-5101.pdf 

and this to SI 2010/1907: http://www.legislation.gov.uk/uksi/2010/1907/contents/made

Tony

I noticed the date but thank you