HB Premiums when Permitted work exceeds higher earnings threshold

Can’t find an answer, looked at A24/2009 but does not explain

DWP find out customer has been working.  Details of sporadic earnings supplied.

For period when earnings are below the permitted earnings they have allowed it as permitted earnings, but niled ESA(IR) for period when the earnings exceeded the permitted earnings higher threshold.

The DWP memo says for these period not entitled to ESA(IR) the customer is capable of work as earnings are above the permitted earning higher limit.

No DLA and ESA was a migration of an I/S claim

Overpayments of HB have been raised for short periods when no entitlement to ESA(IR) but not allowed any disability premiums or work related components which would affect the HB entitlement a lot.

Now self-employed and WTC includes a disability element even though no other disability incomes.

Should the HB O/P periods have a disability premium or work related component?
Confused as to why now getting it with WTC when ESA has ended, so surely must have been entitled to it in the gaps for ESA(IR)?

Interesting one.

There is a difference in drafting between the Social Security (Incapacity for Work) General Regs 1995, which are concerned with being on the sick pre-ESA style, and the equivalent part of the ESA Regs 2008.

In the 1995 Regs, any work apart from exempt work automatically means the claimant is not incapable of work and so any HB premiums, student eligibility etc derived from such incapacity would be lost.  But in the ESA Regs any work other than exempt work means you are not entitled to ESA ... which does not necessarily mean that you lose your underlying LCW does it?  In the HB Regs you get the component included in the applicable amount if you satisfy para 21(b)(i) and (c)(i) of Schedule 2: you have LCW and the assessment phase has ended.  Does that remain the case despite your work meaning you are not entitled to ESA?

There’s not necessarily anything wrong with the claimant still having the disabled worker element in WTC - gaps in her previous ESA award would not be fatal to that.

I have now looked up ESA 2008 regs, see reg 40 & 44, does the wording of 44 mean that not classed as having limited capability of work for any period when the work is not exempt work?

So in my case she will not be entitled to any premiums/components when the work exceeds the higher threshold?

I am still confused as to why she is getting a disability premium within her WTC, what will be the criteria for this?  and if she had correctly declared her work at the time and come off ESA and claimed WTC she would have been entitled to a disability premium?

Yes you are right, sorry didn’t spot Reg 44: no longer LCW.

Could get the WTC disability element if there was a day in the 182 days prior to the claim when she was legitimately on ESA for 28 weeks (including linked gaps).