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Can work be ‘exempt’ at the start of your ESA claim?
Hello.
Any help on this?
Client has recently had to reduce hours drastically so he’s earning less than £90 pw and hours are below 16. He is considering reclaiming ESA.
Would he have to stop work altogether to be paid ESA or can he be doing exempt work from week 1 of his claim?
Thanks.
I advised someone in similar circumstances to claim ESA a while ago and it was awarded with no problem. There’s nothing in the regulations to suggest otherwise.
I agree that he should be advised to make a claim for ESA. There is nothing stopping someone claiming ESA if they are already doing “permitted work”.
However, I have a further question on this issue, which is when does the 52 week period start for those doing “permitted work” of less than 16 hours per week, whose work started before their ESA claim? According to Reg. 45 (4)(c) ESA Regulations states that “…..a period of specified work begins on the first day on which any specified work is undertaken and continues for a period of 52 weeks, whether or not any specified work is undertaken during that period.”
This would seem to imply that the 52 weeks starts from the date the work starts rather than the date the ESA claim starts. Or do the permitted work rules start from the date the limited capability for work starts, which can only be corroborated by the ESA claim. If the latter, where is the authority (regulation) for this? This question possibly does not arise with this case as client has only just started working within the permitted limits. However, you could have someone doing work within the permitted limits under 16hrs pw for 6months, and then makes a claim for ESA.
..This would seem to imply that the 52 weeks starts from the date the work starts rather than the date the ESA claim starts. Or do the permitted work rules start from the date the limited capability for work starts, which can only be corroborated by the ESA claim. If the latter, where is the authority (regulation) for this? This question possibly does not arise with this case as client has only just started working within the permitted limits. However, you could have someone doing work within the permitted limits under 16hrs pw for 6months, and then makes a claim for ESA.
Interesting point. I think a period of specified work begins for the purpose of Reg 45(4)(c) only when the issue of entitlement to ESA arises. Reg 45 is, after all, simply setting out an exception to the rule in Reg 40(1).
And I’d submit that the presumption against retrospectivity applies, ie a provision is to be interpreted as not retrospective unless it expressly provides otherwise. Here, Reg 45(4) & (10) are not clear on whether a period of specified work can commence prior to a “first” ESA claim. As a result, I think it must be presumed that it cannot. However, I think Reg 45(4)(c) is clear that once the period of specified work commences it continues for 52 weeks independently of any ESA or LCW credits award. So “subsequent” ESA awards might still be affected by the period of specified work that commenced in respect of an earlier ESA award. That’s my reading of it anyway.
Edited to add: Work done prior to a first ESA claim might, however, be relevant for the purposes of calculating whether the hours are below 16 per week. See Reg 45(8), especially sub para (b)(ii).
[ Edited: 6 Jun 2012 at 07:23 pm by Tom H ]I’m grateful to you guys for your input.
DMG agrees with Tom: see para 41252 example 2.
And I’d submit that the presumption against retrospectivity applies, ie a provision is to be interpreted as not retrospective unless it expressly provides otherwise.
Tom,
Do you have a reference for this presumption against retrospectivity. Just in case…
Thanks,
Hi Tony
See paras 105 - 107 of SSWP v JL for a discussion of the presumption.
Thanks Damian for pointing out the DMG.