Claims for JSA and ESA can be for either:
- a contributory allowance; or
- a contributory AND means-tested allowance.

I cannot find the legislative basis for allowing contributory only claims, but there must be one becuase it has been a source of lost money for claimants for years. Does anyone know?

Thanks,

There are extra rules to claim contr-based JSA :
- satisfy the contribution condition and
- not have earnings above a 'prescribed ammount' If you have earnings below this ammount , your JSA is reduced to atke account of them.

Same applies for ESA

Jobseekers Allowance is one benefit with two components and is payable under section 1 of The Jobseekers Act 1995 if either the conditions of entitlement are met under section 1(2) (the contribution conditions outlined in section 2) or 1(2A) (the income based conditions outlined in section 3).

ESA is also one benefit with two components the conditions of entitlement of which are to be found under section 1 of The Welfare Reform Act 2007.

Thanks for replies both. I know that ESA and JSA are single benefits, but by what mechanism can the JC take a claim for a contributory allowance but not a means-tested allowance?

Consider this scenario:

Suppose I've been getting ESA-CB for two years and then realise I've missed out on £30 a week ESA-IB. I claim ESA-IB and get three months backdating.

Some while later, I find myself at tribunal. What arguments can I put to the judge in support of the position that there is no legal basis for only considering a contributory allowance and therefore the contributory awarding decision should be revised and over £2,000 arrears of means-tested allownace paid?

Hi Tony

I sort of knew this is where you were going with this but I wanted some time to consider it. This has always bugged me and I have tried in my head to put an argument together along the following lines.

Because of the way Section 1 of the JS Act is worded (JSA shall be payable if x,y or z) then I think the DWP have duty to require sufficient information to determine if an award of JSA can be made whether contribution based or income related.. The DWP cannot abdicate that responsibility and pass it on to claimants by asking them which components they want to claim, particularly as the conditions of entitlement lie in a wholly complex set of regulations.

A claim for JSA is a claim for the whole of the benefit and it is up to the DWP to determine whether the conditions for either component are satisfied and not for claimants to second-guess that determination. Therefore, the practice of asking claimants to choose is unlawful according to the regulations and often leads to breaches of natural justice.

I would not be overly confident of the argument succeeding but I would welcome the opportunity to try it and would certainly take it as far as I could.

Regards
Paul

Thu 15-Oct-09 01:50 PM by Tony Bowman

Thanks Paul,

The opportunity may have presented itself to with ESA. If the client proceeds, I intend to ask for a review of the contributory awarding decision and appeal the inevitable refusal.

If you are anyone else can add to what you've already said that would be great.

Thanks,

Tony

Hi Tony and Paul,
I certanly would argue with DWP that it is not for the claimant to say which one of the two he can claim.
When a claim is made DWP should consider it in the basis of evidence and the DM makes decision based on that.
One thing I did not understand from your post is about ESA claim on IB, for the IB you will need proof of not able to work, to the best of my knowledge but please chalenge me if I am wrong.

Overall any case I am getting I am fighting it to the end and write soooo many e-mails, letters that often DWP or LA just gives up )))))

Regards,
Antonina