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

ESA with SC awarded by Tribunal when there is a live JSA claim

 

neilbateman
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Welfare rights author, trainer & consultant

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Am I right in thinking there was a thread dealing with the scenario of someone who was on JSA and then gets ESA awarded by a Tribunal but DWP won’t award ESA because they say there is live JSA claim?  If so, please can someone point me to it?

Clearly, as a matter of law the decision of the FTT supersedes the JSA but such concepts are too complex for your average DWP employee.

     
past caring
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Welfare Rights Adviser Southwark Law Centre Peckham

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The only thread I can remember was ages past and I can’t find it now.

Strictly speaking (grandmother and eggs, I know, but I find it helpful to explain it this way to DWP staff when I encounter the problem) the tribunal’s decision does not supersede JSA. What actually happens is,

- the tribunal’s decision revises the WCA decision that the claimant does not have LCFW

- as the decision to terminate ESA was predicated solely on the basis that the claimant did not have LCFW, that too is revised and the decision to award JSA (or IS) paid whilst the appeal is pending, is revised - this is specifically catered for by paras. (5G) and (5H) of reg. 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

- the JSA paid whilst the appeal was yet to be determined is treated as having been paid on account of the award of ESA - see reg. 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988.

Hope that covers it….

     
neilbateman
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Thanks. That makes sense.  Sorry for loose language, yes it would be a revision rather than supersession.

Have managed to resolve things (I think), by usng escalation contacts as promised call backs from DWP failed to materialise.

I think part of the problems is the IT tail wagging the legal dog - the computer can “shut down” a JSA claim but apparently it needs to process this overnight and it also needs either a claimant to request it or a DWP staff member to do something.  Otherwise they just ignore the FTT decision on ESA.  As you know, because it is IT driven, legal issues tend to get ignored.  This is worth bearing in mind for future cases.

This is another good reason for claiming assessment rate ESA after submitting an appeal which my client failed to do or rather the JC failed to deal with when he asked them about it.