Tactics to avoid unfair ESA sanction?
Just fishin’ for ideas.
I have a client who was on ESA, failed WCA and had to claim JSA for 2 months.
Even though those awfully nice Jobcentre Plus staff knew he was appealing ESA (and had been on it 5 years) they instigated a work type programme for him to attend.
Appeal allowed 3 weeks ago, so back on ESA, and a rather nice lady (not) from the Jobcentre has warned him about the consequences of not following through with this. What they are asking him to do does not match up with the “soft skills” nonsense they’ve come up with recently.
Client told her he is on ESA, only to be told they didn’t care, and he had to fulfil his responsibilities or else.
Im pretty sure if he couldn’t cope, and was sanctioned, we would easily win the appeal (eventually) however I don’t want any sanction in the first place as he cant afford to live on 29 quid a week.
I also know that writing to ESA is a complete waste of time as they NEVER respond.
Tactics to sort this out without a spiteful JC+ employee sanctioning him purely for challenging her would be helpful.
What group was he awarded? If he has been placed in the support group there is no obligation upon him to attend.
Is this disability-specific? He should ask for full details of it and then raise any issues he may have with it that are related to his specific health problems. Perhaps ask for a DEA to look at the suitability of it for him.
I would suggest that if he was placed on this whilst deemed “fit for work” that this is not the same as “fit for work related activity” , which he now is (at least), so any decision to place him on it now needs to be looked at again in the light of the new decision and the evidence on capability that this inevitably produced.
Oh and don’t forget to complain against the attitude of the JC+ staff member and escalate if necessary.
My bad. Was in WRAG before, and after so apologies for not including in original post
Looking at Regs 3 and 4 regarding requirements to undertake WRA
Ive also found his “soft skills” list from bundle, so ill use that as well.
If she doesn’t back down then I will recommend escalation.
If he is claiming JSA then he is entitled to effectively be ‘off sick’ from his requirements for up to 13 weeks. He can do this by providing a sick note to the JCP. I appreciate that often ESA tribunals take longer than 13 weeks to go through but this may give him some short term relief.
I mean the best way to avoid a sanction is always to do what you’re told as far as possible and if you aren’t able to, then make sure to provide good reasons as quickly as possible. Even if disputes are pursued in the background.
They are allowed to put him on the Work Programme if he is in the WRAG, so there is no objection to this per se just because he has won his appeal - the Work Coach is correct to advise him that he may be sanctioned if he doesn’t comply.
It is still possible for him to ask for his WRA to be reviewed or restricted if it is inappropriate for him given his particular situation. As you identify, you could point out that the possibility of him being put on the Work Programme was not identified to the Tribunal and they may have reached a different decision on reg 35 if they had been told this was a possibility
A statement of reasons could be requested to find out what the Tribunal thought was acceptable in terms of WRA (although note that there is always a small risk that requesting an SOR may alert the DWP to an error of law in your client’s favour). Further appeal to the UT could be considered to try and get into the support group (although the risks obviously need to be noted).
Remember also that when a claimant is put on the Work Programme, the provider still has a broad discretion over what the claimant is actually asked and/or mandated to do and challenges or representations can be made if appropriate.
Various guidance is available here : https://www.gov.uk/government/publications/work-programme-dwp-provider-guidance[ Edited: 20 Aug 2018 at 05:22 pm by Elliot Kent ]