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Forum Home  →  Discussion  →  Conditionality and sanctions  →  Thread

DWP do not consider Extended Period of Sickness applicable for clients claiming JSA after DWP deems them ’fit for work’

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Liz S
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Welfare specialist and appeals officer - Herefordshire Council Welfare Rights Team

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Brilliant Andrew 😊

SocSec
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welfare benefits/citizens advice//ashfield

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Andrew

, any news on the policy yet, any revised/clarified guidance s out local jobcentre is still holding out

JOhn

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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I’m told that drafting the guidance for DWP staff gave rise to further questions/discussions, which are ongoing. But once the guidance changes have been signed off and published, I’m told we’ll get a copy.

I find some cause for worry in the idea that discussions are ongoing - they could backtrack.

The new details are supposed to be out this week (maybe?)

 

shawn mach
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Andrew Dutton
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Welfare rights service - Derbyshire County Council

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I still haven’t been sent the new guidance and I shall worry until I see it….

Andrew Dutton
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Hmm, just received a DWP email telling me that :

‘When [claimant] made a claim for JSA, she was unable to obtain the Extended Period of Sickness, as her health conditions were exactly the same as when she was on ESA.  It had not worsened or it was not a new health condition.  When [claimant] brought in the sick note from February 2017, the Work Coach, had checked our system and saw that it was a slightly different condition’ -so claimant was told to claim ESA.

ESA was of course refused because the DM referred straight to the last WCA and the claimant is now back on JSA with TWO MRs for ESA now pending.

Aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaarg. Where’s this new guidance???

What a stupid system.

Andrew Dutton
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I’ve just received the revised advice (issued to DWP staff on Tuesday) - here’s a summary.

The content of the gatekeeper memo is withdrawn with immediate effect due to new legal advice – new process must be followed.

Consideration of an EPS should be on an individual basis and based upon medical evidence.

The relevant Regulation states that an EPS can be awarded to a claimant who ‘proves to the satisfaction of the Secretary of State that he is unable to work…’
Therefore of the claimant is fit for any work, they can have an EPS (subject to meeting all other requirements)

Claimants are to be treated as available for working during EPS. ‘Work search requirements may only be placed…if it would be reasonable to expect …those steps. Any requirements must be ‘tailored’ and reviewed.

Claimants on EPS may be expected to attend a job interview if this is reasonable – but not to take up a job [and the point of attending an interview is….?]
‘When deciding whether to award an EPS, ex-ESA and existing JSA claimants must be treated in exactly the same way’.

Labour market instructions will be amended accordingly as soon as possible

LJF
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Benefits caseworker - Manchester Citizens Advice Bureau

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is this still up to date or has anything changed?

basically i am thinking -
if failed ESA WCA, they can claim JSA, once up and running can give in no more than 13 week sicknote and they can then accept an EPS and reduce work seeking (but not stop all together and still may ask to do some, but not take up a job). the fact failed WCA before shouldnt mean they are treated any different than other JSA claimants.
there is no blanket rule that they cannot have an EPS for JSA if they have not same condition they have just failed a WCA with.

let me know if this is wrong interpretation or it has changed?

Andrew Dutton
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Hi - yes, the fact that there was a previous failed WCA is utterly irrelevant. The person is a JSA claimant and has the same rights as all other JSA claimants. The DWP guidance was completely at odds with the relevant law.

ub40worker
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I have a client appealing an ESA decision (late MR-his ESA claim was closed down). Is the Extended Period of Sickness still a viable option to advice? He is not really in a fit state to claim JSA but I need to get him some income in and the EPS would do the trick.

Thanks.

SamW
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So long as client is not in a UC full service postcode I’m not aware of anything having changed?

Andrew Dutton
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I’d agree with that.

GWRS adviser
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Just thought I’d post this here (relates to UC but thought it would be interesting to people following this thread) though I’m sure lots of you will have already seen this:

“an amendment was being introduced in relation to claimants subject to work search and work availability requirements. The rules currently provided that those requirements could be temporarily suspended during periods of shortterm ill-health. The change was in relation to claimants found not to have limited capability for work following a work-capability assessment and was to the effect that any suspension in the work search/availability requirements
would only be applied if the short-term health condition from which they would be suffering, was different from any condition from which they were suffering at the time of the work-capability assessment; “

“(k) On the proposed amendment to regulation 99 of the Universal Credit Regulations 2013 and regulation 16 of the Jobseeker’s Allowance Regulations 2013 in relation to short term periods of ill health, would the work-related requirements be switched off if the claimant suffered a flare-up of a previous condition? Could the Department clarify the policy intention with this provision and particularly so in relation to mental health conditions?
If it was the same medical condition as the claimant had had at the workcapability assessment then there would be no automatic switching off of the work-related requirements. The policy was that if it was a re-occurrence or a
worsening of a previous condition they should see their work coach in the normal way so that appropriate advice could be given. It could mean that the person needed to be allocated to a different conditionality regime.

(l) What would happen if there was a significant change or deterioration in the claimant’s condition?
The work coach still had discretion to switch off the conditionality requirement, but this provision simply addressed the automaticity of it.

(m) So would the Department require a different medical diagnosis in these cases?
The Department undertook to respond to the Committee in writing outside of the meeting.”

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/677306/universal-credit-regulations-scrutiny-ssac-summary-jan-2018.pdf

[ Edited: 23 Feb 2018 at 12:34 pm by GWRS adviser ]
WRT Case Worker
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Paul_Treloar_AgeUK - 25 November 2016 03:19 PM
Liz S - 25 November 2016 03:06 PM

Has anyone seen anything in writing to document this sudden change in approach by DWP?

As far as I am aware, these regulations still apply, and the advice to decision makers remains the same, so it sounds like they are talking rubbish (for a change).

Challenge, complain, don’t let it lie.

Agree, Paul / Liz

I was getting quite a few claimants with no LCW being kicked back to us (by JCP) after being told they cannot claim JSA. I looked at 55Za(a) and wondered if JCP managers are disingenuously relying on this to block the claim. I now advise claimants to claim JSA thus satisfying 55Za(a) and to openly accept the decision of no LCW. The claimant agrees a claimant commitment (which they won’t need to follow) and waits for the first JSA payment. Now that the JSA claim is firmly established, the claimant can to go their GP for a fit note. The fit note goes in, the MRN is received (no change), the appeal goes in on the same day as the MRN date and assessment phase kicks in until the FtT decision is made (currently around 23 weeks).

This seems to have done the trick. The conditions of 2015 Ammendment Regs are met and JCP have no leverage. As is often the case, it’s not always about the rules, but how we play the game :-)