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need advice re ESA for EU national and Work Capacity Assessment
Hi, I am currently seeing a client who is a Czech national.
He was employed but had to stop working as he had an accident and had an operation and has problems moving his one arm and walking. He was getting SSP and then moved onto ESA.
He was getting ESA for about a year and then ESA sent him for Work Capacity Assessment.
He failed this assessment, apparently he is fit for work because he can move one arm and can walk with a stick.
They advised him to claim JSA.
He obviously wants to appeal the decision, but does he stand a chance? Can DWP basically tell someone to just go on JSA if they can walk a bit and move their one arm?
He says he cannot work and I don’t think anyone would employ him so it seems like a good way of getting rid of EU nationals claiming ESA.
Any advice?
thank you
Well- it’s nothing to do with him being an EEA. Presumably, they’ve agreed he has a right to reside for ESA purposes unless that’s why his ESA has ceased (after a year he’d move onto IR ESA instead of CB ESA and the DWP would apply the RTR test).
First thing to do is to go through the descriptors with him and see whether he can either potentially attract sufficient points to pass the WCA or whether Reg 29 applies (that there would be a substantial risk to him/others if he is found not to have a limited capacity for work). Having one useless arm is only likely to result in him attracting 6 points at best (the picking up/moving a light but bulky object descriptor) but he may attract more from Activity 1 (Mobilising). He’ll need to request a mandatory reconisderation of the decision and whilst he won’t recieve ESA whilst the MR is ongoing as long as he’s covered by med certs he can receive ESA (the assessment phase) if the MR fails and he appeals (it’ll be paid whilst the appeal is ongoing).
Short term, JSA is the only thing he can claim (other than PIP of course). It’s either that or food parcels/beg/borrow/steal.
Hi Zuzana
Just to add to 1964s advice.
If he does claim JSA whilst waiting for his MR and appeal he should ask the Jobcentre to reduce his conditionality (hours he has to work, distance he has to travel to work, number of things he has to do to seek work, etc.) on account of his disabilities.
There have been a few problems with Housing Benefit and/or Council Tax claims going wrong whilst people swap between ESA, JSA and back to ESA again during the appeal process so he is well advised to keep Calderdale Council informed of what his situation is every time it changes.
If he has mental health issues refer him to me at Healthy Minds for help with his appeal, if not the CAB or DART should be able to assist. ESA appeals in Halifax are being heard within about 3 months at the moment.
Did his accident happen at work?
Hi, thank you for your replies. I am not very experienced in ESA and appeals, I think he has a right to reside as he was working and then became involuntarily unemployed, I think his children are also at school and were while he was working, so I think RTR might not be an issue. I think I am concerned that if he goes on JSA, he will only keep his worker status for 6 months or a year? (I might be wrong here). Obviously if he has RTR then maybe it does not even apply and he can claim JSA for longer?
I am also concerned that if he goes on JSA, his ESA will automatically stop. I had this happen with another client I was seeing, they were appealing ESA and meanwhile made a claim for JSA to get some benefit to feed their family. When they won the appeal, they only got ESA backdated for few weeks before they claimed JSA and they were told because they claimed JSA, they were not entitled to ESA.
Also if he goes on JSA, ESA can then say he cannot get ESA if he’s available for work.
I will be doing Mandatory Reconsideration next week and just not sure what’s the best thing here to do now.
thank you
Hi Zuzana
Just to add to 1964s advice.
If he does claim JSA whilst waiting for his MR and appeal he should ask the Jobcentre to reduce his conditionality (hours he has to work, distance he has to travel to work, number of things he has to do to seek work, etc.) on account of his disabilities.
There have been a few problems with Housing Benefit and/or Council Tax claims going wrong whilst people swap between ESA, JSA and back to ESA again during the appeal process so he is well advised to keep Calderdale Council informed of what his situation is every time it changes.
If he has mental health issues refer him to me at Healthy Minds for help with his appeal, if not the CAB or DART should be able to assist. ESA appeals in Halifax are being heard within about 3 months at the moment.
Did his accident happen at work?
Hi Billy,
I think the accident did happen at work.
Thanks for letting me know about the HB issues. I don’t think he has mental health problems unfortunately, otherwise I would love to refer him to you, I think you would help him more.
Well- it’s nothing to do with him being an EEA. Presumably, they’ve agreed he has a right to reside for ESA purposes unless that’s why his ESA has ceased (after a year he’d move onto IR ESA instead of CB ESA and the DWP would apply the RTR test).
First thing to do is to go through the descriptors with him and see whether he can either potentially attract sufficient points to pass the WCA or whether Reg 29 applies (that there would be a substantial risk to him/others if he is found not to have a limited capacity for work). Having one useless arm is only likely to result in him attracting 6 points at best (the picking up/moving a light but bulky object descriptor) but he may attract more from Activity 1 (Mobilising). He’ll need to request a mandatory reconisderation of the decision and whilst he won’t recieve ESA whilst the MR is ongoing as long as he’s covered by med certs he can receive ESA (the assessment phase) if the MR fails and he appeals (it’ll be paid whilst the appeal is ongoing).
Short term, JSA is the only thing he can claim (other than PIP of course). It’s either that or food parcels/beg/borrow/steal.
Sorry 1964, I always say they are EEA, that’s the only clients I work with.
I think he’s made an application for PIP but I am not sure.
thanks
When they won the appeal, they only got ESA backdated for few weeks before they claimed JSA and they were told because they claimed JSA, they were not entitled to ESA.
.thank you
Just regarding that point; that is really naughty; they owe him teh arrears of ESA from whatever component was awarded for the full period; not just while he wasn’t receiving ESA.
When they won the appeal, they only got ESA backdated for few weeks before they claimed JSA and they were told because they claimed JSA, they were not entitled to ESA.
.thank you
Just regarding that point; that is really naughty; they owe him teh arrears of ESA from whatever component was awarded for the full period; not just while he wasn’t receiving ESA.
That’s what I thought but they said because he was getting JSA, they can’t pay him both benefits at the same time.
Hi Zuzana
Just to add to 1964s advice.
If he does claim JSA whilst waiting for his MR and appeal he should ask the Jobcentre to reduce his conditionality (hours he has to work, distance he has to travel to work, number of things he has to do to seek work, etc.) on account of his disabilities.
There have been a few problems with Housing Benefit and/or Council Tax claims going wrong whilst people swap between ESA, JSA and back to ESA again during the appeal process so he is well advised to keep Calderdale Council informed of what his situation is every time it changes.
If he has mental health issues refer him to me at Healthy Minds for help with his appeal, if not the CAB or DART should be able to assist. ESA appeals in Halifax are being heard within about 3 months at the moment.
Did his accident happen at work?
Sorry Billy, my mistake, he didn’t have an accident, I just spoke to him.
When they won the appeal, they only got ESA backdated for few weeks before they claimed JSA and they were told because they claimed JSA, they were not entitled to ESA.
.thank you
Just regarding that point; that is really naughty; they owe him teh arrears of ESA from whatever component was awarded for the full period; not just while he wasn’t receiving ESA.
That’s what I thought but they said because he was getting JSA, they can’t pay him both benefits at the same time.
They should treat the JSA paid as paid on account of his entitlement to ESA and then pay him the component for the full period. That is because his JSA should never have been awarded as actually he had LCW during that period. Refer them to Reg 5(1) and (2) Case 2 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 (SI No. 664).
Zuzana, what I generally advise clients to do is to hang on through the MR process if at all possible (I know it isn’t slways possible if they have no friends/ family/ food bank they can turn to for short term help) just because it can cause such disruption to their benefit payments if they claim JSA under these circumstances and then close down the claim & elect to recieve ESA if the MR is unsuccessful and they subsequently appeal.
In your client’s case, as he should only have to claim JSA for a short time (whilst the MR is under consideration) and can then get back onto ESA if the MR is unsuccessful and he appeals, he shouldn’t have an issue with any of the GPoW/time limiting stuff that affects EEA work seekers claiming JSA but again, if he has any means of holding out until there is a decision on his ESA it’s probably the less complicated option. His local authority should still be able to pay him HB during the MR process on the basis that he is still ‘temporarily incapacitated’ and therefore retains his worker status.
And I agree wth the others re the successful appeal/arrears of ESA issue.
Thank you
With regards to the issue of arrears of ESA - this was a long time ago and the client didn’t want to go through more appeals, he had enough of waiting for his ESA appeal that took 8 months.
Ok so I will tell my client to do the MR and wait and see what happens.
I think my original question was - can my client win MR or appeal if DWP is telling him he is capable of work but his GP says he is not? Also the client says how is he going to get a job if he can’t move one arm and walk much?
Are there any arguments I can use for his MR or appeal?
thank you
Hi Zuzana, you might benefit from having a look at our Ask CPAG Online which covers assessing limited capability for work (LCW) section in the ESA problem areas section ESA Problem Areas: Limited Capability for Work
In particular, note that “It is important to understand that the test of LCW is not generally a test of whether you suffer from a particular illness or disability, or whether you are too ill or disabled to carry out particular or any actual work. It is, rather, a fairly superficial test of your physical and mental functioning to determine whether you would be able to cope in a theoretical modern workplace, or whether you should automatically treated as having LCW in prescribed circumstances.”
There’s also some information on challenging ESA decisions here.
[ Edited: 2 Nov 2015 at 10:57 am by Paul_Treloar_CPAG ]Hi Zuzana, you might benefit from having a look at our Ask CPAG Online which covers assessing limited capability for work (LCW) section in the ESA problem areas section ESA Problem Areas: Limited Capability for Work
In particular, note that “It is important to understand that the test of LCW is not generally a test of whether you suffer from a particular illness or disability, or whether you are too ill or disabled to carry out particular or any actual work. It is, rather, a fairly superficial test of your physical and mental functioning to determine whether you would be able to cope in a theoretical modern workplace, or whether you should automatically treated as having LCW in prescribed circumstances.”
There’s also some information on challenging ESA decisions here.
Thank you for that.
is here anyone who could help me? I am trying to write MR for this client but I have never done one on the Reg 29 and have absolutely no idea how to word this. I have never done MR for this before and if anyone has any idea how I can start the letter and how I can word it that there is substantial risk to the client’s health then I would appreciate any advice. thank you
Hi Zuzana
Just to add to 1964s advice.
If he does claim JSA whilst waiting for his MR and appeal he should ask the Jobcentre to reduce his conditionality (hours he has to work, distance he has to travel to work, number of things he has to do to seek work, etc.) on account of his disabilities.
There have been a few problems with Housing Benefit and/or Council Tax claims going wrong whilst people swap between ESA, JSA and back to ESA again during the appeal process so he is well advised to keep Calderdale Council informed of what his situation is every time it changes.
If he has mental health issues refer him to me at Healthy Minds for help with his appeal, if not the CAB or DART should be able to assist. ESA appeals in Halifax are being heard within about 3 months at the moment.
Did his accident happen at work?
Billy he says he is on medication for depression, would you be able to help him?
He only has until end of November to send MR off tho.
thank you