Permitted work started prior to ESA claim

Sure there’s been a recent thread on this but can’t find it.

Client was receiving JSA and working part time. Work (school assistant) is within PW limits. Client has developed mental health proboems. GP issued med certs and client closed down JSA claim and claimed ESA instead. However, ESA claim has been refused on basis that work cannot be treated as PW, as client had been undertaking the work (school assistant) for over a year prior to her ESA claim. Client doesn’t want to give up the job unless she has to as it is having a positive affect on her depression- however, she is really struggling with JSA strictures at present.

When does the 1 year clock start ticking? From the date she started the job or from the date she claimed ESA? Any suggestions gratefully received!

For me the problem is that “permitted work” as such is not only work that is undertaken whilst receiving ESA.

Higher “permitted work” (or “specified work”) is simply work that is done for less than 16 hours per week, for which earnings in any week do not exceed £95 such as her school assistant’s job.

I think that the relevant legislation would be regulation 45(4) of the Employment and Support regulations 2008 that defines ‘higher’ permitted (specified) work as -

“(4)(a) Work which is done for less than 16 hours per week, for which earnings in any week do not exceed £95 and which -

(a) is done during a period of specified work, provided that -

(i) the claimant has not previously done specified work,

(ii) since the beginning of the last period of specified work, the claimant has ceased to be entitled to a relevant benefit for a continuous period exceeding 12 weeks, or

(iii) not less than 52 weeks have elapsed since the last period of specified work;  or

(b) done by a claimant who has or is treated as having limited capability for work.

(c) for the purposes of this regulation, a period of specified work begins on the first day on which any specified work is undertaken and continues for a period of 52 weeks, whether or not any further specified work is undertaken during that period.”

Relevant benefits for the purposes of 4(a)(ii) are ESA, IB, IS, SDA, HB or CTB or incapacity for work credits.

Regulation 4(c) was inserted from 28 June 2010 to clarify that, under the ‘permitted work rules’, once work starts the period of permitted work runs for 52 weeks regardless of how many weeks are worked in that period or when the work ceases.

For your client to undertake specified work she would need to bring herself within 4(a)(i), (ii) or (iii).

Unfortunately, from what you’ve said she won’t currently be able to do this as she has undertaken specified work (whilst on JSA), not had a 12 week break in a relevant benefit entitlement and 52 weeks have not elapsed since she last undertook the specified work.

Thanks for the quick response- confirmed what I thought really. Ah well.