Waiting days for ESA Couple claim

Hi,

I’m wondering if someone could help me please. I’m helping a couple make an ESA claim. The wife is the main claimant and they have been told that they are subject to the 7 days waiting rule even though they were receiving jobseekers allowance less than 12 weeks ago. ESA have said that they have to wait the 7 days because it was the husband that was the main JSA claimant although the wife was included in the claim. I’ve looked in CPAG page 1040 and this states that the 7 days waiting rule does not apply if:-

your entitlement to ESA starts within 12 weeks of your entitlement to IS, IB, SDA, PC, JSA, CA, SSP or MA coming to an end…

Are ESA correct or can the claimants dispute this at all?

Many thanks

Follow the footnote 53 which points you towards reg.144 ESA Regs 2008.

Reg.144(2)(i) holds that the 7 waiting days so not apply when the claimant to ESA commences within 12 weeks of the claimant’s entitlement to JSA er al came to an end.

So on an ordinary meaning of the words, you could argue that they are correct,

However, if your couple were being treated as a joint claim couple for JSA, then i think you may have an argument, as in this situation, both partners are treated as needing to fulfill the necessary ASE/ASW requirements and are therefore essentially treated as JSA claimants.

Thanks for replying. Do you know if this would be the case if the wife did not have to meet any jobseeking requirements as they have a 2 year old child?

Many thanks