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

Income after failing WCA - JSA then ESA assessment rate…

geep
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WRO, housing management, Notting Hill Housing

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I’ve found useful bits from previous posts about this, but not everything I was looking for…

My client has just been told that she failed the WCA and disagrees with the decision. She will need to request an MR first, yes? If the MRN upholds the original decision she can appeal and get the assessment rate while waiting for her hearing - as long as she keeps submitting sick notes?

Assuming that what I’ve said above is correct, will she have to claim JSA while waiting for the MRN or face having no income at all? If so, will she be allowed to claim JSA if they know her GP is still issuing sick notes and she has appealed the WCA decision? I read in another post that JCP were refusing JSA claims if the claimant says they have appealed the WCA decision.

If she is allowed claim JSA until the MRN issued, I guess she can ask for more generous conditionality as a result of her health problems? Is there a danger of JCP saying that she can’t claim JSA if she asks for very generous conditionality - despite also being told that she’s not ill enough to pass the WCA. I just want to make sure that there are no gaps in her income without causing any problems for her ESA appeal.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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I basically agree with you on all points. But for the record:

My client has just been told that she failed the WCA and disagrees with the decision. She will need to request an MR first, yes?

Yes. I think all benefit decisions except HB/CTR now have to go through MR.

If the MRN upholds the original decision she can appeal and get the assessment rate while waiting for her hearing - as long as she keeps submitting sick notes?

Yes. Or, she will have the option of claiming (or remaining on) JSA during the whole appeal. E.g. someone on a disability benefit might want to do this, as they could be paid a disability premium on JSA which they wouldn’t get on assessment rate ESA.

Assuming that what I’ve said above is correct, will she have to claim JSA while waiting for the MRN or face having no income at all?

Yes. Unless she is a category of person entitled to IS (lone parent, carer, etc). Or in the event that she has a new condition or severe deterioration, she might get back on ESA on that basis. Or if she has a partner entitled to benefit…

If so, will she be allowed to claim JSA if they know her GP is still issuing sick notes and she has appealed the WCA decision? I read in another post that JCP were refusing JSA claims if the claimant says they have appealed the WCA decision.

She has been found fit for work by an ESA decision-maker. Another ESA decision-maker- or a tribunal - might reverse that decision, but a JSA decision-maker or a GP can not over-rule it. The trouble is: (a) to complete a JSA claim you need to agree a jobseekers agreement (or ‘claimant commitment’), and (b) to even get to that stage you might need to get past JSA staff who sometimes wrongly believe a sick note precludes being a jobseeker, or who don’t know the rules on when someone can receive ESA again on a repeat claim, and so give misleading advice.

If she is allowed claim JSA until the MRN issued, I guess she can ask for more generous conditionality as a result of her health problems?

She can place reasonable restrictions on her availability for work, in light of her health issues.

Is there a danger of JCP saying that she can’t claim JSA if she asks for very generous conditionality - despite also being told that she’s not ill enough to pass the WCA.

They may argue that she can’t restrict herself out of the labour market entirely, and must sign up to a jobseekers agreement that gives her an opportunity to find work. Such an approach may well be unlawful, given that JSA reg 13(3) says that a person may restrict his availability in any way providing the restrictions are
reasonable in the light of his physical or mental condition. But in practice, I’d say you are right to think that this can be a potential problem in getting paid JSA. This CPAG page has some info on this, but NB I’m not sure if it might be falling out of date(?).

Looking to the future, one proposed change to the rules that I think will assist many people on JSA is that from April 2015 claimants who expect to be sick for less than 13 weeks can opt to remain on JSA rather than switch to ESA (currently you can only be treated as available for work for up to 2 weeks of sickness).

Pete C
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With regard to JC + not being willing to take somone on for JSA in these circumstances;


  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.

 

geep
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Many thanks, both.

Pete C, I’m afraid I didn’t fully understand what you were trying to say with the extract of the regulations that you posted, could you elaborate a little, please?