Claiming JSA while Appealing ESA
Have a client who was refused ESA on 28/08/09, he then claimed JSA on 3/09/09 under advice from Jobcentre Plus, he lodged an appeal concerning the ESA that was received by the DWP on 5th October 09 (GL24 dated 30/09/09). He subsequently won his ESA appeal in late March 10 which detailed he should be placed in the support group. Earlier transfered he from JSA to ESA on 26/02/10.
The DWP wiil not award the ESA due to his appeal, as they claim as he accessed JSA, from then he would not be considered as having limited capability for work. The statement which i understand is made under ESA Regs. reg 31, stating that someone is not entitled to ESA if they ‘have claimed JSA and are able to show a reasonable prospect of obtaining employment’. As a matter of interest the claim made for ESA in February was treated as a new claim.
So our client got nothing from his appeal, would like any comments to see if there is a way around this? Is there merit in challenging the DWP decision and trying to argue even though he claimed JSA he did not have a reasonable prospect of obtaining employment.
Would appreciate some feedback.
G Regis A4U
Presumably the DWP will argue he did have a reasonable prospect as he satisfied the JSAg?
I would be interested to know if the Jobcentre actually told him that claiming JSA while his appeal was pending would disentitle him to any back paid WRA or Support Component if he won the appeal.
The service standards for JC+ say that they are responsible for giving claimants ‘accurate information’ to enable the claimant to ‘decide what to do’ and i wonder if the JC+ staff are/were actually aware of Reg 31 and it’s ramifications. If he was misled (whether unintentionally or not) and it was to his disadvantage there may be a case for an ex gratia payment to cover the losses. I have had at least one case like this and I am going to offer to write for an ex gratia payment on behalf of the appellant if they would like me to.
It would of course be more desirable if there was some challenge to Reg 31 itself (especially as it seems to fly in the face of years of previous practice in respect of JSA while IB was under appeal) but i cannot see any obvious route to such a challenge.
See Welfare Rights Bulletin 207 Re assurance that in just such a case that arrears will be paid:
I think it all depends on whether they had, or were treated as having, limited capability for work when they claimed JSA, and then what the JSA decision maker did when the claim for JSA was made - whether they treated the claimant as not having LCW because the claimant failed the medical, in which case the Tribunal decision would make invalid the JSA decision, or whether they actually used reg 31 and superseded the decision on being treated as having LCW while appealing, in which case I reckon an ex-gratia payment is maybe the best option… annoying though!
Thank you for the link to the Bulletin, I would be very interested to see the email regarding backpayments, it certainly doesn’t happen in practice due to Reg.31 but I can’t help but wonder if that is why the JC+ staff seem unaware of the issue, they may have been told about this email or seen it. Has anyone got a copy of the original?
I have a similar situation. Client got WCA decision dated 1/7/2010 and claimed JSA as soon as she could as she was worried about Council Tax Benefit. She has MH difficulties and the HCP had advised her that she could see she had the difficulties she had described but would not meet the very high threshold set by the WCA, so she didn’t think about appealing, until she spoke to me.
She is a lone-parent too and although she has explained why she needs to limit availabilty to the JC, she hasn’t yet explained her health problems.
I saw her today and went through the descriptors and she wants to continue her appeal. I’m advising her to ask for ESA to be reinstated during the appeal period, however on JSA she would get £93.45 pw (includes Dis premium, as she is on DLA), so I feel uneasy with this as it is a significant difference in income whilst she is waiting for the appeal to be heard.[ Edited: 13 Jul 2010 at 05:55 pm by Sangeetae ]
Just a few thoughts regarding the last posting:
The problems with Reg 31 above only concern backdating after an ESA appeal is won so it might be better to stay on JSA and keep the higher income.
If she wins the appeal and goes into the WRA group her ESA amount would only be £91.40 so it seems like there would not be any financial advantage , especially as she may have to wait for several months at the assessment rate waiting for the hearing and eventual backpayment. The fact that she is now on JSA cannot have any bearing on the appeal as it happened after the date of decsion so I’m not sure there is any advantage to her returning to ESA at the assessment rate while the appeal is pending.( I would welcome other views on this - the rules concerning ESA and appeals seem to be in a constant state of flux!)
Whichever she does her entitlement to CTB is the same as it is worked out under the same rules as IS and includes the Disability Premium.
if she wins ESA Appeal, would she simply have to stop JSA claim and await payment of ESA (incl WRAC) from end date of JSA claim?
Advantages to claiming ESA are Permitted work earnings disregards and if on ESA long enough and then gets job of 16hours +, she could get Return to work credit and benefit protection.
Good point about the permitted work earnings etc, I ‘m not very bright this morning so i didn’t think of that,- sorry.
I am not sure what the rules are regarding the resumption of ESA after an appeal, the two or three appeal cases like this that I have done the JSA award seems to have been automatically revised but there were some new rules that came into effect on 28.06.10 regarding post appeal ESA, see para 49 of DMG 33/10 et seq for the general idea.
We have had issues with this three pionts spring to mind
Complain for poor advice or lack of advice and financial loss if you win the appeal.
Some clients on small awards of DLA are substantiually better off on JSA so this works as a disentive to appeal.
But at the same time clients who opt for JSA rather than ESA may gain in some areas but do not have access to the finacial incentives of ESA with return to work credit etc.
If we struggle with this winner loser lottery how are clients supposed to cope?
It is probably worth considering in these cases the following:
1. Submit a late appeal against the decision to award JSA etc.
2. Once appeal admitted then the DM is free to revise that award at any time.
3. Also make an application for the JSA decision to be revised under Reg 3(5A) of D&A Regs-
(a) the Secretary of State or the Board or an officer of the Board, as the case may
be, makes a decision under section 8 or 10, or that decision is revised under
section 9, in respect of a claim or award (“decision A”) and the claimant
appeals against decision A;
(b) decision A is superseded or the claimant makes a further claim which is
decided (“decision B”) after the claimant made the appeal but before the
appeal results in a decision by the First-tier Tribunal (“decision C”); and
(c) the Secretary of State or the Board or an officer of the Board, as the case may
be, would have made decision B differently if he or they had been aware of
decision C at the time he or they made decision B,
decision B may be revised at any time.
4. It is not clear whether decision B (ie which you would argue is the award of JSA in this case) needs to be in respect of the same benefit as decision A (ie the award of ESA supersession of which under sec 10 SSA 1998 the claimant was appealing against). I suspect the DM will say it does as that is the meaning of “further claim” (ie that implies a further claim for the same benefit). However, I do not think that must be the case so it is worth a go.
5. You won’t be able to appeal a refusal of the revision as the time runs from the decision to award JSA- that is why you are appealing that one as well.
I can’t see that the DWP intended this to be the case and indeed they seem to have given CPAG assurances that it would not happen.
Thanks for all the feedback from my original inquiry. Back in late June I saw our client and from our meeting we decided to pursue the route of asking for Financial Redress for Maladministration on the basis that he was misled by JC+, to clain Jobseekers Allowance when appealing the original ESA refusal decision. Also now JC+ changed their mind and paid him ESA at the Support Group level from February 10 when he claimed ESA and relinquished the JSA award without the need for a medical assessment. Will update when we hear the outcome.
G Regis - A4U
Have now had an outcome on this case, we made a special payment request which has been successful. Got an ex-statutory award of about £800 for the period Sept 09 to Feb 10 and a consolatory award of £100 in recognition of the inconvenience he had suffered in pursuit of the benefit. The ex-statutory award given was for what he would have received extra after winning his appeal if he was on ESA throughout that period instead of JSA. The basis of our claim to the DWP was that he was misadvised about his benefit entitlement in appealing an ESA decision and while claiming JSA.