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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Can’t apply for JSA “restrictions”  whilst waiting for ESA medical. Why not?

Shazz
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Welfare Reform Team Northwards Housing Manchester

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Total Posts: 32

Joined: 14 April 2015

Hi

I have just come off the phone to a DWP manager. I am helping a client who failed to attend a WCA for ESA and has not had any benefit income since 13th May 2017. I advised client to claim JSA “with restrictions” whist awaiting the outcome of her medical (she was previously in the Support Group).

The DWP manager explained that if she claims JSA this would mean that she would be having two simultaneous claims and on the system it would look like she is looking for work and therefore jeopardise her ESA claim. The DWP manager explained that if she was waiting for the outcome of a mandatory reconsideration that she would be able to apply for JSA with restrictions but because she hasn’t attended a medical it is a different scenario and she would need to make a decision of whether she wants to continue with the ESA claim (but without any money in the meantime) or close the ESA claim and claim JSA instead.

I’ve not come across this before and I have in the past advised clients to claim JSA in the meantime..and in fact have had an identical case very recently and as far as I’m aware this particular client was allowed to claim ESA with restrictions. (I even typed her a letter to take in to DWP explaining this.)

This has totally confused me now as the manager sounded really convincing and I’m questioning myself now. Is this correct? I’m not from a legal background but if anyone could offer any caselaw quotes or anything that could assist me in appealing this if the advice I was given today was incorrect.

My common sense tells me that nobody should be expected to live off fresh air for multiple weeks without having the right to claim another benefit in the meantime?

By the way, my client also told me that although she did miss her original medical in January, her WCA was cancelled twice by the health assessment provider and she failed to attend the fourth appointment in May due to illness.

Any advice would be most welcome

Thanks

Sharon

Shazz
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Welfare Reform Team Northwards Housing Manchester

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Total Posts: 32

Joined: 14 April 2015

*meant to say JSA with restrictions, not ESA

Firebird
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Manchester MIND Advice Team

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Joined: 14 July 2015

I think that what you have been told is incorrect. We get lots of clients who’ve had their ESA claim disallowed - for whatever reason - and we advise them to claim JSA. We always tell them to let the jobcentre know they are intending to appeal the decision and don’t usually have any problems.
I think this manager might be getting it all mixed up with another situation which is: if they have failed a WCA assessment, once their appeal is lodged with the Tribunal service they can close down their JSA claim and ask the Jobcentre to email the ESA benefits centre to reactivate their ESA claim which will be paid at the assessment rate.
However if ESA was disallowed because they failed to attend a WCA assessment, then they have to stay on JSA until such time as the Tribunal hears the case and gives its decision.
They cannot have a JSA and ESA claim both open at the same time.

Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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Total Posts: 90

Joined: 18 June 2013

I’m a bit confused on the details of this one Shazz; is your client challenging the decision that she does not have good cause for missing the WCA? Or has she reapplied for ESA resulting in a decision that she will not be entitled to payment until a new WCA is carried out? Each scenario would have different consequences with regards to JSA entitlement.