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ESA via Form DS1500

 

J.Mckendrick
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Please could anyone have the time to reply to the following query in that can a client claim ESA having been issued with a Form DS1500 and still keep on working and earning and receive an ESA payment without taking into account previous NI Conts and income/savings, again purely on the strength of being issued with a Form DS1500.

     
Paul_Treloar_AgeUK
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Unless it’s treated as permitted work, then no. Reg.40 ESA regs 2008 and Reg.37 ESA regs 2013.

     
J.Mckendrick
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Many thanks for your reply. So the actual regulation that purely deems someone to have limited capability for work or limited capability for work related activity is over-ruled by Reg 37 & 40 and in effect stops the client from being able to carry out any paid work as this would stop any ESA payments. I was just wondering that if someone is deemed to have LCFW or LCFWRA, “that’s it” and they are free to carry out what work they choose thereafter. Can it be argued that REG 37 and 40 only applies to those being treated or found unfit for work by other means eg failing an ESA medical.

     
Paul_Treloar_AgeUK
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A claimant who works to be treated as not entitled to an employment and support allowance

40.—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work

(7) “work” means any work which a claimant does, whether or not that claimant undertakes it in expectation of payment;

A DS1500 provides automatic ESA entitlement with no assessment period or waiting days and entitlement to the relevant component but that doesn’t override this other basic condition of entitlement.

So as above, unless the work can fall to be treated as permitted work, then any work done automatically disentitles that person from ESA for that week.