ESA and long term sick

Got a client who is still gainfully employed but is on long term sick. Employers kept job open. SSP expired , claimed ESA, failed WCA and we are going down the MC route. However in meantime, she has no money so has had to claim JSA. However she couldn’t as she was still technically employed.

Employers refused to terminate employment, due to equality act etc, so forced to resign. Which will probably lead to sanctions etc, as she has had to resign from her job. Client hopes to get better, but now she has no job to return to-all to claim benefits.

This just seems a crazy system!

Anyone any ideas how to get round this-if there is a way that I am missing?

You refer to your client as either “gainfully” or “technically” employed, it sounds like the latter is more correct. If she is not doing any hours of work, and is receiving no form of pay, then I don’t see why the existence of an employment contract would have precluded a JSA claim. Per the DMG at 20308, When someone is absent from work due to sickness, ordinary paternity leave, additional paternity leave, adoption leave or maternity leave the DM should decide that they are not in remunerative work during such absences

I hope I’m not missing something here, but I have previously advised clients to claim JSA in similar circumstances, suggesting that they may have to:
(a) get past the barrier of being persuaded by JCP to “try ESA again” during the JSA claiming process (being covered by a sick note is not a reason to refuse JSA either); and
(b) complete a jobseeker’s agreement showing that they are available for at least some work, albeit perhaps not currently capable of their previous job.

NB, resignations can sometimes be retracted…

It seems you would need to go into depth with your client about what it is about the current job that made them unable to work at that job and wether that also makes them unable to work effectively at any job or wether there are other employment things going on (im thinking here of a client recently who was bullied mercilessly and ultimately found a job where that wouldnt happen, their health improved and they now wish they had done it earlier)

Or for example is it a physical issue when other jobs might use other skills

Longer term this points to options , Im sure we see many clients who cant do one job but could do others or even know that in 6 months they may be able to do their old job one A,B, C has happened

Thats where the balance of is ESA/ appeals etc the route (locally thats about 12 months) or is it JSA and seeing the disability adviser and having it recorded that they have some limitations but want/can/wish to work

I would agree do warn them that many at JC+ see no problem in bouncing clients between ESA and JSA knowing that in reality neither is the ideal place

I agree with Craven CAB. There’s no reason why she can’t be accepted as available for work for JSA purposes. Trouble is, by the time you’ve been around the houses and argued the toss on it, the ESA MR will have probably been completed (and she’ll be back on ESA one way or another).