My client made a claim for ESA which was treated as a claim for IB under 'welfare to work beneficiary' provisions. She had been in work for around 7 months prior to the second benefit claim.

Going back on to IB from where she left off meant that she had about two weeks of short-term low rate IB, during which the LA allowed childcare costs under HB reg 28(2).

When she then moved into short-term high rate, the HB was reviewed and childcare charges were disallowed. This caused a significant shortfall in HB and arrears for which the client has a forthcoming posession hearing.

Our view is that even though this appears to be grossly unfair, the LA's decision appears to be correct because the use of the word 'period' in reg 28(2) appears, by reference to reg 28(3), to refer to the ''period' of incapacity for work' (PIFW). Since our client has a linked PIFW then her 28 weeks are indeed up.

We think there's sufficient uncertainty in our interpretation to warrant an appeal, but what do you think?

Has anyone come across this before?

Thanks,

Hi Tony

Reg 28(3) is in the following terms:

(3) This paragraph applies to a person who was engaged in remunerative work immediately before—

(a) the first day of the period in respect of which he was first paid statutory sick pay, short-term incapacity benefit, an employment and support allowance or income support on the grounds of incapacity for work; or

(b) the first day of the period in respect of which earnings are credited,
as the case may be.

So it is the period during which she was paid short term incapacity benefit at the lower rate that is the deciding factor and once this is up then paragraph 2 no longer applies. Paragraph 2(b) is in similar terms. I think your interpretation is spot on and leaves no room for manoeuvre.

Regards
Paul

Thanks Paul,

We'll see if we can get a DHP on the grounds that this is an unintended consequence - the drafter seemingly having been unaware of the linking provisions for incapacity for work.

We might also write to DWP and ask them to amend the reg in the case of welfare to work beneficiaries.

Thanks again,