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

Appealing for Support Group when better off on JSA

 

ROBBO
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Welfare Rights Team, Stockport Advice

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I’m trying to work out the implications of this, so please do bear with me.

Client has award of PIP, but ESA initially refused following WCA, so he signs on, and receives disability premium.

Decision Maker then looks at further medical evidence, and agrees he should have been placed in the WRAG.

It is a new claim, so he will not receive payment of the component, and will lose income by switching back to ESA.

We are appealing in the hope of Support Group.

He is anxious not to lose income, so wishes to remain on JSA, despite the favourable ESA decision.  I don’t see why he can’t do that, if he wishes to declare himself available.

On the other hand, I’m concerned firstly that a PO will bring up his workseeking history at the tribunal, to the detriment of his case, and secondly whether he will be paid arrears if his appeal wins, and he is then retrospectively entitled to the Support Component.

Any views/experience welcome.  It’s quite possible it’s more straightforward than I’m worrying about.  Or not.

     
AlexJ
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Trafford Welfare Rights

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There is a case which says that claiming JSA pending the outcome of an appeal should not prejudice the outcome of a WCA appeal, but I don’t know the reference. It’s a well established principle though. I’d also be mindful of the risk to the existing award of ESA when going for SG - the tribunal have the power to make an entirely new decision on LCW, including finding him fit for work, which may be a significant possibility in this case, given that there’s an ESA85 report which suggests that he doesn’t pass the WCA at all. Just something to have on the radar.

     
Daphne
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I think the problem here is that the claimant is now entitled to ESA following the reconsideration and so that is what they should be paid pending the outcome of the appeal to get into the support group (presumably a fresh appeal as the last one would have lapsed due to the more favourable decision?). If they say they want JSA it will be them declaring themselves fit for work I think - or am I getting confused??

     
AlexJ
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My mistake. I see the problem now. If he’s entitled to ESA, he should be on ESA, unless he chooses not to be, in which case he’ll have to stop his ESA claim entirely presumably and be a JSA claimant. I can’t see how he can be sort of half on ESA in the background, whilst continuing to claim JSA. I completely misread the problem.  So it turns out I don’t have anything helpful to add, apart from the comment about the risk to the existing award. Sorry about that!

      [ Edited: 30 May 2018 at 03:34 pm by AlexJ ]
ROBBO
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Welfare Rights Team, Stockport Advice

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Thanks for your input both - the situation is as described by Daphne - and presumably would become more common, but for the onward march of Universal Credit.

     
JoIM
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Hello

I had a client in exactly this position - put in the WRAG prior to the appeal hearing on grounds of new medical evidence, already claiming JSA with a disability premium and better off than in the WRAG on ESA. Decided to appeal again requesting the support group and chose to remain on JSA pending the appeal. He won his appeal and the decision to stay on JSA did not seem to cause any problems.

My client had a minimal claimant commitment and a support worker helping him manage JCP interactions. It would genuinely have caused him more stress to switch back onto ESA and to have to manage the reduction in income, than to keep going with the JSA claim. As his appeal was made on mental health grounds, this argument was accepted. It might have been different if he was managing a full claimant commitment.