Right to reside, ESA appeal, and JSA claim

Can’t see the wood for the trees here, so any suggestions gratefully received. Client refused ESA in January 2013 on right to reside grounds. Appeal finally heard last month and allowed in his favour, on basis of being worker with temporary illness. Client has just received the arrears payment so it seems DWP accepting decision.

Client had signed on for JSA in meantime, and also receiving HB for hostel. I have advised that he should now sign off as once he does so, JSA payments will cease and ESA payments can commence. However, hostel is worried that (1) HB may disallow claim now on r2R grounds, or (2) that ESA payments may stop soon on basis he can’t be held to be temporarily incapable given period of time concerned i.e. January 13 to June 14, and that if this happens, he won’t be able to reclaim JSA.

On (1), I am of the opinion that HB should continue to be passported in usual way, and any decision to the negative should be straightforward to overturn using FtT decision.

On (2), I am not aware of any fixed period for “temporary” illness being established, but that it can’t be a permanent illness (which it isn’t, as he has substance abuse problems and therefore can now get to recovery hopefully). Therefore I can’t see this being an issue either at this stage. i think hostel also worried about the new January 3 months rules, and the fact that as it stands, he effectively has transitional protection insofar as claiming JSA is concerned, and could lose this if he signs off.

Anyone? I’m trying to reassure them but finding it difficult to be definitive.

This should settle nerves, Uganda [2010] UKUT 447 (IAC) (16 November 2010), there are no real options when trying to determine if someone is ill, they are either temporarily ill or permanently ill, no matter how long that has been. At least that’s what was decided in this immigration UT case.

http://www.ait.gov.uk/Public/Upload/j2328/00447_ukut_iac_2010_fmb_uganda.doc

The claimant, based on the details you have posted,  should retain his R2R as a worker, whichever way the LA/DWP want to slice it.

Cheers, thanks very much.