Background - claimant was on SSP. Claimed ESA at end SSP period in Nov 08 - failed WCA - appealed decision - but claimed (and was paid)JSA pending appeal rather than continuing on basic rate ESA (not clear if on own volition or following bad advice from JC+ / a.n.other). Won her appeal (after usual delays) and found to have LCfW by tribunal.

ESA now say she must make a new claim for ESA because she has been on JSA in meantime and because it will be a new ESA claim, cannot be paid LCfW component arrears due following tribunal, must go into assessment phase and through new WCA.

Are ESA correct (they would also like to know!)? Has any one else encountered this issue?

Our conclusion is that they are not because:-

ESA qualifying condition is that claimant is not entitled to JSA - WRA s1(2)(f). Whilst for JSA claimant does not have limited capability for work JSA s1(2)(f).

ESA Reg 30(3) allows basic rate pending appeal, but ESA Reg 31 treats a claimant as not having limited capability if they claim JSA and meet certain other conditions.

The intention of these provisions is to ensure the exclusivity between the two benefits.

However, JSA Act Sch 1, para 2 states that whether a claimant has limited capability for work for JSA purposes is to be determined under the Welfare Reform Act = ESA.

Our argument is that this means the tribunal decision applies not only to the original ESA decision that was appealed but must also apply to subsequent decisions awarding JSA. This means the original ESA claim continues to exist, the claimant has LCfW so component payable from wk 14 and is not required to make a new claim etc. It also means claimant was not eligible for JSA as did not meet condition of entitlement so original JSA decision must be revised.

In practice what ESA must do is re-instate ESA award and offset any arrears due against JSA paid.

There does seem to be a potential conflict of interpretation / application between JSA Sch 1 para 2 and ESA reg 31.

We are also encountering similar procedural questions where a claimant claims IS (for example as a carer) pending an ESA appeal rather than staying on basic rate ESA (again due to bad advice?).

In practice the situation with WCA failure appeals should be no different to the IB/IS PCA appeal process where claimants might claim JSA instead of reduced rate IS - all that is required is to offset any arrear against JSA paid - but JC+ don't appear to get that argument.

Its Friday afternoon - time to get your brains working again!

ESA are wrong. As she has won her appeal she is treated as continuously incapable from the start of her ESA claim. She was incorrectly advised to claim JSA. As you state, she should have been awarded ESA at the personal rate once her appeal was received.

Once her appeal was won, ESA needed to send a recovery form to JSA asking them how much they had paid so ESA could pay any arrears due for the period JSA was paid.

Basically, anyone who is disallowed ESA as they have failed their WCA and appeals the decision should be awarded ESA at the personal rate, following the date that ESA was disallowed from, once the appeal/ GL24 has been received on the ESA section.

If appeal won, ESA should be reinstated along with any premiums & component if applicable. There is absolutely no need for her to make a new claim.

This particular client was wrongly advised & JCP should realise this immediately as it is obvious.

Hope this helps!

By the way, I worked on the Incapacity Benefit section @ Hastings JCP for 11 years then on the ESA section until the end of June 09 before starting my job at Hastings Advice & Reoresentation Centre as a Welfare Benefits Advisor.

If the SSP period ended in Nov 2008 the period of incapcity for work presumably started in May 2008 (assuming no linkd periods). Why therefore did she claim ESA and not IB/IS? Shouldn't the claim for ESA have been trated as a claim for IB/IS?

lilacpig - Hmm - I get the impression that there is a procedural problem (with the IT system?) and they don't know how to deal with these cases - maybe the IT system won't allow the ESA claim to be 'rebuilt' because there is a subsequent JSA award on the system?

I don't thing the issue at BDC end is one of correct application of the legislation.

What do you think from your insider knowledge?

Brian - SSP is not covered by the ESA(TP)regs.

Once again you are right. The system ESA uses is JSAPS, and yep, if there's a JSA claim on the sysytem, ESA has to do a clerical claim. JSA need to 'transfer to clerical' or 'TTC'. A stupid way of saying delete the claim, before ESA can then build it on JSAPS. Even then there can be a problem with the PD dialogues, namely PD052.

Whatever the system problem is, your client was incorrectly advised to claim JSA and now appeal is won should have ESA reinstated as a clerical claim until it can be rebuilt on the system.

The whole idea of putting ESA onto JSAPS was ridiculous as it is definitely not fit for purpose. The IB system (RP) would have been much better if it were not for the fact that the RP system has SRP, BB, WB. WPA, SDA, MA, IB, and others sharing it!

It was extremely frustrating working with such inadequate software!

Hi,

I’m actually at my wits end with our local DBC. Not the same problem but very similar!! I apologize now for the long rant.

Our client failed the Limited Capability for Work Assessment, scoring 6 points, decision date 01/05/2009. Our client made a telephone call to the DBC and advised that she would like to appeal against the decision. She was advised to make a claim for JSA. She wasn’t advised that she could also continue to receive ESA at the assessment rate until the outcome of her appeal.

Client made a claim for JSA based on the information provided and was awarded from 05/05/2009. Client came to see us on 01/06/2009 and we assisted her with an appeal. The appeal was faxed to the department and we have since received a letter confirming the appeal has been accepted as valid. At the appointment the client stated how she was struggling to fulfil the conditions of entitlement for JSA due to her illness. We advised her of her right to continue her claim for ESA until the outcome of her appeal (ESA Regs – Reg 6).

We advised client contact the DBC and explain her circumstances and make them aware that she was incorrectly advised and that she wished to continue her claim for ESA rather than claim JSA. The DBC closed her claim for JSA…wait for it…instead of re-opening her claim for ESA (which by the way they closed before her time limit to appeal had expired) and advised her to make a new claim for ESA which she was obviously refused because 6 months hadn’t passed, no new condition blah, blah, blah.

Client has been without income since, however the DBC will not budge on opening her old claim for ESA. Even though they firstly provided incorrect advise and closed down her claim before her appeal rights expired. Following many calls, letters and faxes to the DBC I have been completely blanked. They will not budge and will not send a decision letter providing the regulations they have used to come to this decision, probably because there are no regulations…computer says no…so they can’t re-open the claim!!!!

I feel like I’m hitting my head against a brick wall,- i really can't understand why the DBC cannot re-open her claim as it was their fault the claim was closed in the first place !!

This has now been referred to a local MP. I would be grateful for any views or if anyone has had a similar experience?

I would suggest that whenever a local office is blatantly acting so unlawfully to contact the DWP solicitor's office. It has never failed me in the past.