Hi – can I have an opinion on WTC entitlement when someone in receipt of SSP resigns their job and is then paid ESA?

My client started getting SSP in Nov 09 but resigned in Jan 10. He now receives contributory ESA.

TCO say he stops being treated as being engaged in work once his SSP ends.

I had hoped to argue that his entitlement to ESA means his entitlement to WTC should continue but think he may be caught by 6(3) WTC(EMR) Regs which states that you must have been engaged in work immediately before the beginning of the ‘period’.

If the period in question is the one in which he receives ESA, then he wasn’t engaged in work beforehand – he was just treated as if he was on the basis of his SSP.

But if it refers to his period of limited capability for work then it’s the same period, it’s just that he gets ESA rather than SSP.

I’d be grateful for any comments.

Thanks.

My reading of the reg is that it doesn't matter whether the claimant gets IS, IB, ESA or credits, he is treated as being in work for the first 28 weeks of sickness. I think that the word 'period' referred to is in respect of these 28 weeks, rather than the time for which any particular benefit is payable.

If the period starts when SSP is first paid and payment of ESA merely continues that period then, because of reg 6(4) a person could potentially remain entitled to WTC for a further 28 weeks after coming off SSP as the para says that the 28 week period begins on the first day ESA is paid. That surely cannot be right.

I think the clue to unpicking the reg is in para 1, which reads as follows:

“This regulation applies for any period during which a person.” A list of alternative payments and credits is then laid out only one of which needs to be satisfied.

Put a different way, when the reg says any period during which a person is paid SSP or ESA, etc, then it is saying that periods of payment of SSP and payment of ESA are separate periods. This would be consistent with the wording of para 4 as to when the period begins. The periods are clearly not periods of incapacity for work, linked or otherwise.

This would be in line with the policy intention of allowing WTC to continue for a maximum of 6 months once a person falls sick. It is para 3 that ensures this by looking at the situation immediately before each period, in this case the period beginning with the payment of ESA.

The fallout of course is that there are some people who finish work who will get less than 6 months but this makes policy sense as payment of WTC was not intended to people who are no longer in employment at all but intended for those who have a temporary interruption of an employment.

That's really helpful - thanks for that.

I've seen a couple of cases where this has happened when people (entirely of their own volition) have stopped work when on SSP and have missed out.....hey ho.

Things can only get better....