Bad advice from Jobcentre Plus

We are getting clients in who are having problems claiming JSA after asking for a MR of an ESA fit for work decision.

The clients are going to their first interview at the Job Centre after claiming JSA and being told by the staff there that they are too ill to work, stopping their JSA claims and being told to reclaim ESA, despite there being no deterioration in their condition or no new diagnosis.

When they reclaim ESA, the claim is refused on the evidence in the initial medical.

All of this is taking more than 2 weeks and in the meantime the client has no money to live on.

we have had several situations similar to this with client’s from 2 separate Job Centres.

Obviously we are helping them to reclaim JSA.

Anyone else noticed this type of practice?

I’ve heard of a couple of such cases, and in both of mine the client has agreed they are not fit for work.

However, it shouldn’t matter: 1) the client is applying a freestanding test of fitness for their usual occupation, rather than the test in the regulations, and 2) it’s just their opinion, not their decision to make.

Yes. It’s still a depressingly familiar story in Manchester.

JC+ JSA advisers are desperate to close claims for any excuse.

A client of mine claimed JSA during MR process and went in to sign on as usual.

She produced a sick note while there and asked what she should do with it

Adviser said “brilliant : give it here, ill send it off, ill close your JSA claim and you will get paid in 2 weeks” which of course wouldnt happen in a month of sundays.

I was a tad furious when she told me…..............

Oh look - almost the first email I open today….JC+ have used the ‘disability’ evidence from a JC+ claim to feed into the decision for an ESA claim and that although they say that claiming JSA is ‘not relevant’, the fact that no adjustments have been made in the JS Agreement means that the person is fine….not that they have failed or refused to assess the situation properly!

This is absolutely the picture in Salford/Manchester. It’s not an intermittent thing. It’s pretty much across the board.

I remain to be convinced it’s absolutely about nothing more than numbers though. Anecdotally JC+ staff are coming across as quite sympathetic (and yes I know they can afford to be) and well intentioned in advising reclaims for ESA. In some cases I consider it to have been good advice. In most it is not but the key thing I’ve picked up is that the staff giving this advice simply haven’t been sufficiently trained to know what they’re talking about.

You could always try quoting their own guidance back at them.  Paragraph 13003 of the Decison Makers Guide states as follows:

13003 A determination on whether a person is, or is treated as, capable or incapable of work for entitlement to any benefit, allowance or advantage also determines entitlement for any other benefit, allowance or advantage for the same period1.
1 SS CS (D&A) Regs, reg 10

I take this to read that the JC+ staff should not question the ESA decision, even if the customer presents a sick/fit note to them.  This issue is addressed in the section ‘JSA and ESA issues’ in Kate Smith’s article ‘Mandatory Reconsideration’ which appeared in Adviser 163, pages 14 to 18.

I am quite sure I read something a while ago, which looked like guidance to Jobcentres to say people who’ve been found fit for work through the WCA should not be refused JSA on the grounds that they are unfit for work.

Unfortunately, I don’t have this now. Unless someone can find it, perhaps an FoA request regarding guidance to Jobcentre staff.

@Andyp4

That’s the essence of what I read. However, I thought I’d read it before November 13.

You might be thinking of the old situation where a claim for JSA wouldn’t prejudice an ongoing IB appeal?

Gone are the days we can trust JCP to be so sensible…

The person who claims JSA pending MR of an ESA decision is first of all protected by Reg 10 of the Social Security and Child Support (Decisions and Appeals ) Regulations 1999 as amended.  Reg 10 provides:

“Effect of a determination as to capacity or capability for work
10.—(1) This regulation applies to a determination whether a person–
(a) is capable or incapable of work;
(b) is to be treated as capable or incapable of work;
(c) has or does not have limited capability for work; or
(d) is to be treated as having or not having limited capability for work.
(2) A determination (including a determination made following a change of
circumstances) as set out in paragraph (1) which is embodied in or necessary to a
decision under Chapter II of part I of the Act or on which such a decision is based shall
be conclusive for the purpose of any further decision.”

The JSA decision maker is therefore not entitled to look behind the ESA decision regardless of what the clamant or the claimant’s doctor may say. It is certainly not for the JSA decision maker to refuse the claim because it is alleged that the claimant may not be fit for work.

That is not the end of the matter because the claimant may restrict his availability for work (without facing sanction) in view of his health.  Regulation 13(3) of the JSA Regulations 1996 as amended provides:

“(3) A person may restrict his availability in any way providing the restrictions are
reasonable in the light of his physical or mental condition.”

So there we are, a person who has asked for an MR of an ESA decision will not only be able to claim JSA pending the MR, he can also restrict his availability for work whilst awaiting the MR.  The JSA decision maker must accept any reasonable restriction that the claimant may wish tomake

@DManville

It isn’t IB, of that I am quite certain. I wonder if it came up at a stakeholders’/partnership meeting. How annoying.

Never mind, I think we’re all quite clear now anyway.

I’ve heard a lot from clients who have had problems with their interim JSA claims.

Another classic is the refusal to see a DEA for support with JSA.

Also, one advisor told my client; “there are many jobs out there for disabled people” and despite needing support to make his JSA claim (LD) he was sent away to try and manage on his own.

*flail*

Interestingly, I’ve had a succession of clients signposted to me in recent weeks from staff (albeit annonymously) from local JC for advice/assistance in challenging negative WCA decisions (on basis said clients should clearly not have failed the assessment).

To be fair, I have had that happen too. However only one of them was brave enough to support the client in writing. (Result:-Decision revised without issue!)

One of our local DEA’s had a client’s first jobseeking step down as coming to see us for help with her appeal