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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA stopped: exceeded 52 weeks permitted work

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Pernish
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Can anyone help re permitted work? Cl has exceeded 52 weeks and DWP has now stated that is fit for work. Does DWP have any obligation to notify claimants when the 52 week period is approaching? I can’t find anything relevant and fear they will simply arguing onus is on cl as they were told at time of making claim. Cl was getting assessment rate pending tribunal which was won in March when put in WRAG (cl has advanced kidney disease and is awaiting a transplant). Work was 3 days per month for £145 approx. Cl now has no ESA, HB/CTR and is surviving on CTC, CB and an overdraft plus getting into rent arrears…

I’m getting nowhere with DWP on this and papers seem to be just going the rounds. I have asked today for an MR of decision to put in WRAG on basis of deterioration in condition but meanwhile further letter from DWP arrived today saying cl was found fit for work at WCA (DWP escalation says that this is just a standard letter….)

MaggieB
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Local authority should continue HB/CTR on the basis of nil income (CTC/CB) only which means she should continue to get full benefit until this is resolved.

Pernish
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Thanks for the replies. Is there any DWP protocol or staff guidance for what forms/guidance should be given re PW? The DMG has nothing on procedure and merely refers to reg 45 with case studies.

It is not clear that cl was ever sent PW1 when claim originally made. Work was noted by cl on claimant commitment form but that gives no information on the 52 weeks. DWP did not issue PW7 until cl eventually learnt that ESA was stopped on basis of exceeding 52 weeks. Questions on PW7 suggest it is meant to be sent out to claimants as they approach end of the 52 weeks. DWP escalation has given conflicting responses first saying it is cl’s responsibility and then suggesting that PW7 form does get sent out…It may be that cl is unable to do anything about the decision but given the serious health problems I wanted to explore all avenues…

On HB - yes cl can claim on basis of no income and I’ll suggest this is done. However local housing authority are aware of situation and are not pushing re arrears. Very stressful for cl though…

nevip
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It’s a tricky one this.  I think that the term “permitted work” is misleading as it gives the impression that this is work you need the DWP’s approval for.  The correct legal term is “exempt work”.  In other words, it is work you can do which does not disentitle you to benefit.  Apart from the general duty to disclose changes of circumstance which might affect your entitlement to benefit there is no specific legal requirement to even inform the DWP that you are doing this work.  Thus it is difficult to hold the DWP responsible to a legal obligation to take the initiative over monitoring individual cases in a way which relieves the burden on claimants.  Of course, it is prudent administration where the DWP are aware of individual cases to put markers on the system to alert them to expiration of time periods but it would be a bit of a stretch to render them liable in law for, say, negligence or maladministration in the majority of cases.

Paul_Treloar
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I’ve had a similar case of someone being very badly advised about whether they could work and claim SDA in the past. At Tribunal, the associated overpayment that resulted was found to be wholly recoverable from claimant, due to a combination of amongst other caselaw B, Hinchy, and Duggan, whereby the duty to disclose is absolute and falls onto the claimant, they have to disclose the material fact of working to the office dealing with the relevant benefit, and the fact that even though one arm of the DWP may have known that he had been working, the duty of the claimant remains to disclose to the relevant office.

We couldn’t see a way to challenge, even though it was accepted that the claimant was wholly innocent of any knowing non-disclosure and due to his health problems, would have found it extremely difficult to know that he should have disclosed the fact of working. We’ve asked for discretion not to recover as well, which was something the Judge said he thought should be applied in this case but obviously has no powers to enforce. Waiting to hear what they decide.

Mr Finch
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Sorry if I’m missing the point, but if the work is only 3 days a month then there appears to be no barrier to stopping work and reclaiming ESA. Working during a week ends entitlement for that week, but it’s shouldn’t have any ongoing effect as far as I can see. It’s not the same as being found ‘fit for work’.

Pernish
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There is no overpayment in this case as benefit was stopped on anniversary of claim although cl did not realise this at time as tribunal was pending against refusal (successful in march leading to backdating of wrag component). By time cl aware of reason (April when contacted DWP to find out why no esa being paid) they had worked beyond 52 weeks. DWP are still reviewing PW issue but is the best course to make fresh claim now anyway? I may be misunderstanding this but I thought that once you exceed 52 weeks PW you are fit for work under regs 40(1) and 44(1). I admit I’m struggling with this - so should I advise cl to make new claim? I’m afraid it’ll just be turned down. Alternative is to go on waiting - DWP will give no indication of how long decision may take…

Pernish
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Sorry - clearly cl did know that assessment rate ESA stopped but although contacted DWP the PW reason was not given and cl was left with impression from DWP that all would be sorted once tribunal over.

Tom H
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It’s worth re-claiming if you can get him into the SG which would remove the 52 week limit on the type of PW you are discussing - see Regs 45(4)(b) and 40(2)(f).

Is he doing dialysis?

[ Edited: 20 May 2014 at 03:16 pm by Tom H ]
Pernish
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No dialysis yet but function now at critical level - 11%. Before can do dialysis a minor op is needed plus 8 weeks recovery. Also on transplant list. I want to appeal tribunal decision to get transfer to SG when PW will not be a problem (tho in the end work may be impossible it’s psychologically important). But I’m afraid new claim will simply be struck out on basis that exceeded 52 weeks and therefore capable of work. Am I wrong?

Tom H
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If I have things right the assessment phase ESA that the client had been receiving pending appeal was terminated before the tribunal heard the appeal.  That may be correct because he reached his 52 week limit so that his work was no longer exempted from the ban in Reg 40(1).  The fact he was being treated as having LCW under Reg 30 at the time could not save his entitlement because Reg 40(1) trumps Reg 30 in accordance with Reg 44(3)(b).  An alternative to requesting permission to appeal the tribunal decision would be late appealing the above supersession that terminated his ESA pending appeal.  The grounds for appeal would be that he should have been in SG at that point or that his substantive ESA entitlement should not have ended despite his work (see below).

It’s arguable that he should have continued receiving ESA pending appeal for any weeks beyond the 52 week PW limit in which he did no work.  That argument construes Reg 40(1) as not terminating the ESA award (here of ESA pending appeal) but instead as simply treating the person as having no ESA entitlement in the weeks he works, ie leaving intact his entitlement in the non-work weeks.  If that’s correct then the successful tribunal decision putting him in the WRAG should have resulted in his substantive ESA award continuing, albeit with entitlment treated as not existing for any weeks when work is done.  That seems sensible as otherwise a person would have to make separate ESA claims for each non-work week.  Obviously the work itself, its frequency and duration, is obviously evidence about his capability for work itself and might cause him to fail the WCA.

By appealing the above supersession which terminated his ESA pending appeal you could have this argument out, as well as using the alternative argument that he should have been in the support group at the date of that supersession.

That just leaves the question whether it’s worth putting in a new claim now.  I cannot see how they could use Reg 40(1) to refuse to even consider a new claim because, as stated in my earlier post, he’d be entitled to ESA from day 1 of any claim provided he got into the SG.  A claim subsists until a decision is made on it.  So they would have to issue a decision if they chose to rely on 40(1).  And that would be capable of being MR’d then appealed.

I not checked any caselaw on this mind (if there is any).

Pernish
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Tom thank you so much you have been massively helpful. Re your first paragraph - cl finally got letter at end of April stating 1) following tribunal decision had been put in WRAG and paying arrears of component but 2) ESA stopped as exceeded PW. Before that cl had got no notification in writing. I fear I took the wrong route on this letter as I got cl to ask for MR to be moved to SG on basis of deteriorating condition (esp. reduced kidney function over position at WCA). At same time I applied OOT to CTS for statement of reasons as judge had seemed to say that could not put cl in SG as they were working. I thought if this was confirmed in written reasons it might be grounds for going to UT. But from what you say I ought instead to have asked for a supersession of the decision (which wouldn’t have been out of time as notification so late…) I’m afraid I haven’t helped cl much with my efforts so far..

However you have cheered me up! I had not picked up on the general rule re work in reg 40(1) which clearly seems to say that disallowance is only for weeks in which cl worked. Given that cl has returned PW7 to say is no longer working (this is decision going via DWP escalation that we are waiting on) surely ESA must now be reinstated? That being said cl did get letter this week (I assume triggered by submission of PW7 picked up by someone at DWP other than the escalation person) stating that they had been found fit for work at WCA. To me this suggests the general rule is not being applied? I can’t find any reg which states that DWP can treat exceeding 52 weeks as automatically being FFW. Your comment re frequency and duration is noted but 5 hours per week: 20 hrs pm in all @ £146 surely could not be seen as capability for f/t work?

Finally re new claim - I am just not sure if I should urge cl to put in new claim now or wait to see outcome of PW decision. I’m actually thinking of calling escalation again and asking for advice - it’s just that as cl has had so much stress from this on top of their condition I don’t want to put them through more hoops. On the other hand time is passing…

Tom H
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I think you’ve gone down the right route in asking for MR of the April decision.  My reference to supersession was to the supersession made by the DM on his/her own initiative when ending the ESA pending appeal (as opposed to your client applying for supersession).

That’s a very interesting point about the relationship between actual work and SG status.  Whilst there’s IB caselaw to the effect that Reg 27 (substantial risk reg re IB) assesses that risk in relation to work of at least 16 hours, ie remunerative work, I think the position for ESA is slightly different.  Reg 44(3)(a) provides in effect that any non-exempt work means you are treated as not having LCW for the week in which you do it, regardless of the number of hours worked that week and of the fact you are treated as having LCW, eg under Reg 29.  That’s my reading anyway. 

But your F-tT was, of course, talking about whether SG status is affected by work.  I don’t think it automatically follows that work done affects your SG status, partly because, as we know, a Sch3 descriptor is satisfied if it applies for the majority of the time.  I suppose every case has to be decided on its individual merits.

[ Edited: 21 May 2014 at 09:37 am by Tom H ]
Pernish
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An update - I know it’s overlong but would really appreciate any suggestions. Maintenance escalation finally found PW7 & passed to DM last week. Called DM escalation:since 52 weeks PW has been exceeded cl must have a break of 12 weeks before is able to undertake further PM. Link to prior claim now broken so cl has to make new claim in full - assessment period, new WCA (unless HCP does case on scrutiny) etc

OK I know several people have commented that cl has responsibility re PW. I think that is hard but would be willing to go with it. However in cl’s case the facts are different: cl knew nothing about PW at all until a month after the 52 weeks were up. Indeed claim was not marked as PW until then. Cl originally made ESA telephone claim around at end of Jan 2013 and DWP adviser backdated to Jan 10 2013. Cl explained about p/t work (3 days a month - 5 hrs pw - @ around £33 pw) and was told that was not a problem but nothing was said re PW rules or any time limit. Cl was sent copy of their ESA Customer Statement recording name/address of employer, hours of work etc but no information re PW. DWP sent nothing more to cl.

Claim proceeded. In Nov 2013 WCA failed. Cl appealed. Jan 2014 ESA was stopped at anniversary of d.o.c. Cl rang DWP in February and asked about next payment to be told money had stopped. When asked why DWP rep stated that this was because DWP “has received information that you have returned to work”. Cl very surprised and stated that they had never stopped work. DWP rep replied “but there is no PW1 on file”. Arranged to send out PW1 which cl completed and returned (twice as DWP lost the first one). DM escalation confirmed to me last week that PW1 form on file was dated 18 Feb 2014 (more than 5 weeks after end of PW period).

Pernish
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Nothing more heard from DWP and no money. Tribunal on March 25 put cl in WRAG group. Cl rang in first week of April to be told that PW period had been exceeded and no ESA would be paid. Cl very upset and came to cab. Further calls to DWP eventually produced decision letter 28 April stating from 13 April 2013 ESA will be £100.15 pw as now place in WRAG but continuing “We cannot pay you ESA from 11 January 2014”. No reason given for this in letter. To me this means that claim was still open. (Component arrears were paid into bank account and promptly consumed by cl’s overdraft).

More calls to DWP escalation. Now cl told to complete PW7 form to be sent out - although not expressly said (escalation careful on this) clear implication from DWP was that this would sort out the problem and payment would resume. Of course it didn’t.
To me it seems that DWP had to have PW1 and PW7 to make decison that 52 weeks had been exceeded. Cl’s claim was retrospectively designated PW (after period had already expired) and then reg 39(7)(b) (2013 - 2008 reg 45(4)(a)(ii) was invoked. If this had not been done then all ESA paid to cl would have been o’payment as cl not entitled under general rule in reg 37(1) (previously 40(1)). In fact WCA and allocation to WRAG group would also have been nullified.

Is there any challenge possible? 12 week disentitlement is all about requalifying for PW - cl is in such difficulties now that would resume work if it’s available - although on PW7 had stated that gave it up from beginning of April (when finally told about PW). More to the point health is now so precarious that probably not able to do it anyway - very likely to be required to go for dialysis at next consultant check in a week but must have a minor op first plus 8 weeks recuperation. Council are preparing to rehouse in next two weeks in larger property to accommodate dialysis machine.

DM escalation suggested letter of complaint - am urging cl to do this but without knowing protocol re PW decisions and what went wrong here I’m expecting nothing.. Is it maladministration and an ombudsman complaint? Decision letter not yet received but expected - I’m assuming it will state PW as reason - if it does would anyone think worth an MR? As noted earlier I can’t see how cl can win - if not PW then are not entitled, if PW then over 52 weeks.

PW regs are arguably defective: if cl is responsible for notifying DWP then at least they should be entitled to be told rules at the time and not after the period has expired. So DWP should be required to send out PW1 form in all cases and if this isn’t done then no suspension/disallowance should be possible.

Tom H
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As long as client meets criteria for PW for the 52 weeks then fact he didn’t notify them is not really a problem.  An overpayment would only have occurred for the period wk 1 – 52 if ESA would not have been paid had the disclosure been made.  That’s not the case here as the work he was doing quite clearly satisfied the PW rules so that, if he had disclosed it in the proper manner, ESA would have continued anyway.  Where someone starts PW during an ESA award and does not disclose it, there may be a case for saying that DWP lose the opportunity to re-assess under the WCA from the date the works starts, but even that is n/a here given your client was doing the work from the outset, disclosing it in the phone call in which he made his claim.  By the way, the ESA40 leaflet accompanying an ESA award letter includes this instruction “you must tell us straight away if you want to do permitted work” as well as defining PW and requesting the completion of a PW1.  The ESA40 gives the impression that a completed PW1 is one of the permitted work conditions, whereas the type of PW we’re discussing here (ie that authorised by Reg 45(4) 2008 Regs – I’m assuming you’re in a UC area otherwise the 2013 ESA Regs are n/a) does not ask for prior notification (contrast with Reg 45(7) which implicitly requires it).

The DWP stopped his ESA pending appeal from Jan 2014 and they are taking the view that “treated as” not entitled in Reg 40(1) allows the substantive award to be ended, as opposed to disallowing entitlement for the individual weeks of work.  I stated in my original post that such a position “may” be right.  Assuming it is right, the DWP have correctly ended entitlement from 10 Jan 2014.  That doesn’t prevent arrears of the WRAC being paid from approx 13/4/13 (ie wk 14 of claim) – 10/1/14.  We do need to know whether his ESA included any contributory allowance or whether it was all income-related.  Assuming it was the latter (ESA would have been time-limited from 10/1/14 anyway had it included any contributory allowance) he has not, since 10/1/14, been entitled to a “relevant benefit” defined by Reg 45(10) as either cb-ESA or LCW credits.  Reg 45(4)(a)(ii) allows PW to re-commence if a person has not been entitled to a relevant benefit for a continuous period exceeding 12 weeks.  That condition would be satisfied in your case on, to be safe, 6/4/14.  He’s not entitled to ir-ESA prior to that date because he continued working (Reg 41(1)). 

If he makes his new ESA claim by phone tomorrow (27 May) he can ask for ESA to the day after his last day of actual work (see below).  If the resulting WCA puts him in the SG, he could ask for the awarding decision to be revised so as to award ESA from 27/2/14, ie 3 months from date of claim, on the grounds that Reg 45(4)(b) is an alternative ground to Reg45(4)(a)(ii).  As there is less than 12 weeks between 27/2/14 and 10/1/14 his new period of limited capability for work (pLCW) would link under Reg 145 with the old one.  Hence, he would be entitled to be paid main phase and the SG component from day 1 of the new pLCW (27/2/14) in accordance with paras (1)(b), 1A and 1B(1) of Reg 7. (Interestingly, para 1B(1) does not appear to require the same component to have been received in the previous pLCW as the one awarded in the new pLCW).

If the result of the above WCA puts him in the WRAG then the WRAC would seem payable only from wk14 of the new pLCW unless it can link with the old one.  We don’t have enough info to say whether it does link.  You say he has declared to DWP that he gave up work from the beginning of April 2014.  But the exact date is crucial.  If he last worked, say, on 2 April, he could ask for his new pLCW to start on 3 April.  It would then link with the old pLCW allowing him to be paid main phase + WRAC from day 1 (ie 3/4/14) using the same paras of Reg 7 above.  Note: crucially, Reg 40(4)(a) provides that he is treated as not entitled to ESA only on 2 April in the above example rather than the whole of the week in which the 2 April fell.  That’s very important because it allows him to have LCW from 3 April and, accordingly, his new pLCW to commence then.  Equally crucial is Reg 40(5) which dis-applies the ordinary linking rule found in Reg 145 in order to allow 3 April to be classed as the day he first becomes entitled to benefit for the purpose of Reg 45(4)(a).  Furthermore, any earnings for, eg, 2 April would appear to be disregarded under para 1 of Sch7 ESA Regs with the effect that his entitlement to ir-ESA would be free to commence from 3 April by virtue of Reg 41(3), allowing the new pLCW to also start then and, therefore, link with the old pLCW to ensure payment of main phase from 3/4/14.

If in SG his specified work period is not restricted to 52 weeks; if in WRAG he appears able to start a new 52 week period of specified work if he wishes; “first day” in Reg 45(4A) referring to the first day specified work is undertaken (in his case the day he re-starts work) rather than the day the same work was first undertaken. 

Remember that all of the above assumes the DWP are right in construing Reg 40(1) as terminating the substantive award as soon as someone does non-exempt work rather than just for the week of work concerned.  I think the definition of “week” found in Reg 40(7), ie a week in respect of which a person is entitled to ESA, arguably shows that entitlement remains and hence the need to treat the person as not entitled for that week under Reg 40(1).  But that point seems academic here as your client’s ir-ESA would have ended immediately under Reg 41(1) from 10/1/14.

Advice remains:

(i)  seek permission to appeal on basis he was in SG
(ii) seek MR (all MRs are arguably in-time requests) of the April decision cancelling ESA from Jan 2014.  Argument is that he was in SG on 10/1/14.
(iii) New claim starting from no later than 3/4/14 (WRAG) or 27/2/14 (SG). 

[ Edited: 26 May 2014 at 04:34 pm by Tom H ]