Limited ESA award re appeal because claimant claiming JSA

Hello. I am currently putting together a sub for a ESA appeal (no points on the limited capacity for work assessment)

When her ESA was stopped she got advice from somewhere and claimed JSA as she didn’t know that she could continue to claim the assessment rate of ESA .

The DWP’s sub states that if limited cap for work if established at tribunal, they want the award limited to the day before she claimed JSA. Their argument being that she signed the jobseekers agreement, stating that she is looking for work, and therefore has a reasonable prospect of employment.

Anyone know of any decisions etc to counteract this argument?

Many thanks

It all depends on when the person claimed JSA.  That is because the law was changed from 1st October last year.  Before that date my experience is that the JC is interpreting the law as meaning that someone could not be entitled to ESA if they were claiming JSA.  The only way round this seems to have been to try and get them to revise the decision awarding JSA - e.g. on the grounds that the person was not really available for work given their health.  I have had a couple of cases where this has been the case and one JSA award was successfully revised and the other was not and is the subject of an appeal.  There is a useful article on the subject in CPAG’s Welfare Rights Bulletin no218, October 2010, pp8-9.

After Oct 1st I thought that the ESA award would just replace the JSA award as long as the usual conditions apply.

Thanks Tony, Do you know where I could find that info?

Also, just as an aside my client was not told by the DWP that she could continue to receive the assessment rate if she appealed. The info given on the decision letter suggests claiming JSA as an option, or claiming ESA again if the condtion worsens.

I can fax you a copy of the article if you give me your number.  It was written before the legislation was amended so only refers to it going to happen but otherwise covers the issue.

Similar poor/inapproapriate advice was given in the cases I have dealt with.  Cause for a complaint but does not change the legal position, unfortunately.

Thanks Tony, that would be really helpful.

Our bureau fax number is 020 7329 4547

On its way - I have marked it for SGregu - I trust that’s OK

That’s brilliant. Just what I needed. Many thanks

My experience is that Jobcentre plus dont tell clients anything whatsoever if WCA failed, other than “you are no longer entitled to ESA from (date) because ........ etc etc.
They love telling you what you cant claim but not what you CAN claim.
Several of my clients (mainly the ones with mental health issues) have failed the WCA, been unable to cope with JSA so didnt claim and been living on their DLA (if they are “lucky” enough to be in receipt). We only then got involved after referrals from adult services. Makes you wonder how many others that we dont see are living in abject poverty due to no income and an inability to deal with it.

It never ceases to amaze me how different the advice from DWP can be depending on where you are in the UK or whether it’s from a local JC+ or BDC call centre. Our local JC+ actively encourage clients to appeal often with the phrase ‘many people get no points and still win at appeal’. These clients are usually directed to us for further help.
Come on DWP a little consistency would not go amiss.

Same in our area Chaos - the local office are really good - the call centre sometimes falls down a bit which tends to be when they have new staff but overall it’s not bad.