ESA and permitted work

In advance of an appointment would really appreciate any thoughts on this apparent scenario, info sketchy.

Client claims New Style ESA on basis of permitted work, claim refused on basis she earnings over the pay threshold i.e. net pay over £125.50.

Case notes suggest client’s contract is a old fashioned public sector bank contract i.e. no guaranteed hours and they vary according to client’s availability and work needing to be completed in the team she does bank work for.

Some months client doesn’t work at all, the notes also suggest client has had several periods of sickness and is off sick again now.

Looked New Style reg 39 exempt work and the old style ESA reg equivalent reg 45 i.e.  is there a ‘recognisable cycle established in respect of client’s work’ by reference to the number of hours worked, or if those hours fluctuate, the average of hours you are expected to work, disregarding any other absences and If the above doesn’t apply the period 5 weeks before your date of claim i.e to average out hours and earnings.

Anyone got any thoughts

One of the problems is that you first have to establish whether a recognisable cycle actually exists before applying the right limb of the reg.  This is not a straightforward matter by any means.  You should read the commentary to the equivalent reg’ in the Income Support Regs, particularly the case law.  Did a few of these types of cases many years ago with regard to term time workers and the 16 hours threshold for IS/JSA.

nevip - 15 January 2019 01:43 PM

One of the problems is that you first have to establish whether a recognisable cycle actually exists before applying the right limb of the reg.  This is not a straightforward matter by any means.  You should read the commentary to the equivalent reg’ in the Income Support Regs, particularly the case law.  Did a few of these types of cases many years ago with regard to term time workers and the 16 hours threshold for IS/JSA.

Thanks Paul i take it you are referring to reg 5?

Yes I am

Thanks for that!