“Treated as not entitled” vs “Not entitled”  iESA earnings of >£152pw

An income-related ESA claimant exceeds the exempt work earnings limit and:

“is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work” (reg 40)

and so:

“the claimant is to be treated as not having limited capability for work”. (reg 44);

Does this:

1 - terminate the the ESA award?

or

2 - merely remove entitlement for the period in which the earnings exceed the limit enabling the resumption of payments after the earnings have dropped, without a new claim?

DWP says option 1, and I guess that’s right, but maybe an alternative reading of “treated as” and “in any week” might give some scope for option 2.

Any suggestions?

.

Nb: A closed-period argument won’t work as the higher earnings are still in effect for a couple more weeks.

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Also, I’m aware that this is similar to aspects of other recent posts but I hope someone will be able to give me a focused response.

:-)

Mike

Reg 40 sets out that a person is disentitled to ESA when they are working. Reg 44(1) then sets out being disentitled under reg 40 additionally has the consequence that you are treated as not having LCW, which is mostly significant for NI credits purposes.

I suppose that most closely resembles your “option 1”, but I am not quite sure that there is really a distinction to be drawn between the two options at all.

If, when the DM makes their decision, the claimant is not entitled to ESA for the time being, then the DM’s decision is to end the award. Even if you might say that the disentitlement is temporary in some sense, in that the claimant could at some future point meet the conditions of entitlement again, that isn’t of any practical benefit because the DM still needs to end the award. Prior to UC, you would have advised someone in these circumstances that they ought to reclaim once the barrier to entitlement is lifted, but this is no longer possible (for old-style irESA at least) as a result of the introduction of UC.

Yes.

I suppose the thing that puzzles me is why the legislators wrote “treated as” and “in any week” both of which suggest temporal limitation to me.

I think the ‘treated as’ language comes about because the enabling provision uses that language (see para 10, sch 2 WRA 2007) and the ‘in any week’ language is just a consequence of the fact that ESA is awarded in respect of a benefit week.

Yes.

But my question remains.

Why write ‘treated as not entitled’ when you could write ‘not entitled’?

Still, it’s an unanswerable question, and whatever the reason it seems to have no utility.

Thanks though.

:-)

I just took it to mean something like ‘the conditions for entitlement are covered elsewhere, but by virtue of this paragraph you’re nonetheless ‘treated as’ (not) entitled’. I.e. the language of an exception to the rule.

Va1der - 24 January 2023 09:22 AM

I just took it to mean something like ‘the conditions for entitlement are covered elsewhere, but by virtue of this paragraph you’re nonetheless ‘treated as’ (not) entitled’. I.e. the language of an exception to the rule.

Yes Va1der, that makes sense.

Anyway, I’ve clearly been barking up a fruitless tree.

Thank you

Along similar lines. Client given a lump sum of £14000 as final payment after terminating work due to ill health. I’m thinking that he’s not actually working but could the final payment breach the income limit for permitted work?

I don’t think this is a problem - although they have earnings, they were not working and the permitted work rules rely on this, see reg 45 (for the ESA Regs 2008)

https://www.legislation.gov.uk/uksi/2008/794/regulation/45

Thank you, Sean. I was hoping that this would be the case as the client was not performing any work in order to generate the large payment.