Is it legally possible to fall between JSA and ESA?

I’m developing a pro-forma tick-box form for health professionals which is based on proxy questions designed to ascertain whether a sick/disabled person can or cannot regularly meet the JSA regs.  The dividing line is actually quite slight when you look closely and even more blurred if you factor in Access to Work funding, but that is is not actually taken into account in ESA. Logically (?) where a person can’t meet the JSA regs, they they should slide into the ESA WRAG group (at a minimum). There will also be proxy questions covering regs 29 and 35, and the Support Group.

Its a bit of a head banging task, but the idea is to reduce the substantive points down to a few choices. My question though is whether it is possible to actually fail to meet the criteria for either sets of regs and actually drop out of the system into benefits hell?

I have a case that fits this bill. Client with Fibromyalgia fails ESA CWA at tribunal appeal, cannot meet JSA requirements due to fluctuating nature of ill health. Client has claimed no work replacement benefit for over a year (husband earns), tried to encourage client to reclaim ESA but cannot face it.

I nmore commonly see clients with mental ill health who fail ESA WCA (some at appeal, others not attempting appeal), claiming JSA but cannot cope with this and ultimately being signed off again by GP’s and reclaiming ESA. The merry-go-round !!!

Aside from relying on common sense as Tony says, it makes you wonder whether whether the JSA regs were ever reviewed in the context of the later ESA ones. The cynic in me says it’s all too convenient as the JSA claimant is £25 worse off a week, while the cock up theorist says no one bothered checking in the first place.

Having become much more acquainted with the requirements for ESA, it is beyond doubt it is possible to be not entitled to ESA AND not entitled to JSA.  This is because the ESA descriptor system does not necessarily result in a true refelection of a person’s ability / capability to work.  In other words, the correlation between capability for work and entitlement to ESA is, all too often, merely coincidental.

I have certainly come across cases in the past where people have been refused IB/ESA and have then been found not entitled to JSA for various reasons. Whilst Tony is correct that most JCP decision-makers do seem to take a reasonably enlightened and pragmatic view these days, it is still clearly the case that they are seperate decisions on separate benefits and the simple fact of being found not to have a limiited capability for work for ESA does not imply at all that someone can automatically fulfil labour market conditions for JSA.

In terms of advising clients where it isn’t clear which scenario would apply, I think tactically an ESA claim should always be the first option to advise on, as the criteria for entitlement in relation to a health condition are laid out in regulations and should thus be easier to explain and examine in relation to that particular client. Obviously, the potential financial implications long-term are also beneficial, as is the fact that a negative decision that is appealed continues to pay an equivalent amount to basic rate JSA until the appeal is heard.

I wonder if Prof. Harrington’s remit covers the relationship between the two?

From a policy perspective, it’s hard to believe (even these days!) that the overall effect of the regs could inadvertinately leave someone with nothing. We always appeal ESA negative decisions, but it was only when I started to look at the two sets of regs together it became apparent that there is virtually an overlap, instead of a hard division.

The problem is that many claimants treat the Department holistically (bless!) and think that when they do claim JSA they can elicit sympathy for the failed WCA by still emphasizing their disability.  What happens then is that the employment adviser refuses to sign off on the jobseekers agreement.  Next stop, JSA refusal.  Note, JSA decisions of this type are made by DM’s and not employment advisers.

It’s just indicative of the complete failure by the DWP in those early stages in some cases to advise claimants properly in a manner that is most helpful to them.  JSA decisions like this should be challenged and proper advice sought.  It maybe the case that some will not be able to be available for or be actively seeking work due to their disability.  On the other hand there will be those who, if properly advised, will be able to bring themselves within the scope of a suitably flexible jobseekers agreement which satisfies the relevant legal requirements.  And, this should not prejudice any ESA appeal.

Isn’t there a regulation to the effect that a finding on capability for work is binding for all benefits? That should mean that in theory there is no gap.

A person with a disability who is claiming JSA is entitled to restrict their avaialbility for work to any extent reasonable in the light of that disability, be it by the type of work or the number of hours being sought. What are DEAs for otherwise?

I think there are situations where neither JSA or ESA will be paid.
This is an interesting scenario; a client has ME- she has been signed off work by GP and Occupational Health Specialist. She claims ESA, but is awarded nil points. At present we are awaiting the appeal. However, what happens if the appeal fails? She won’t obviously get ESA, she has been told she can’t work by GP. On that basis I think that Health & Safety rules would (or should) preclude her from actually working. She could claim JSA, but is she actually ‘available for work’? Now I am seriously hoping that hours of researching/writing my Submission will ensure the appeal is won, but does anyone know what happens next if I don’t?