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ESA claim closed after exceeding permitted work higher earnings limit
I am sure I knew the answer to this one a long time ago but can’t remember now - any help appreciated!
I have a client who has had his ir-ESA claim closed due to exceeding the permitted work higher earnings limit (slightly). He states that he exceeded it in some weeks but not others, however the claim has been closed and he has been deemed as having no LCW as he has worked.
I thought that if wages vary you are treated as not having LCW on the weeks that your earnings exceed the limit, but that you can then be entitled on the weeks that they do not? However, not sure how this works in practice.
Appeal has been lodged against decision to close claim and a new claim has been made (but not yet processed). Client is in receipt of HB with SDP so not able to claim UC (and don’t want him to!) and would be a lot better off doing permitted work than on WTC at 16 hours.
I suppose I am asking two things here really:
1. Is there merit in pursuing the appeal and how are periods of exceeding the PW limit treated?
2. Will there be any issues with the new claim being put into payment, now that client is below PW limit (and intends to stay below!) and can the period of LCW(RA) be linked?
Thanks in advance for any input!
1. Is there merit in pursuing the appeal and how are periods of exceeding the PW limit treated?
2. Will there be any issues with the new claim being put into payment, now that client is below PW limit (and intends to stay below!) and can the period of LCW(RA) be linked?
Thanks in advance for any input!
1. Where earnings vary and there is no discernable pattern the DM is at discretion how to work them out. That said, so is the Tribunal so; so long as there is a way you can average them to below 16 hours, it’s worth a try.
2. No there won’t but they can’t be linked. Exceeding the PW limit kills an ESA claim dead and there is provision preventing the linking of periods of limited capability for work.
I had a similar case a couple of years ago and the claimant was a very sympathetic figure who would work loads during the summer but hardly anything over the winter; it averaged out to to about 14 hours a week over the year and the Tribunal was happy to oblige.
[ Edited: 12 Sep 2019 at 12:08 pm by Dan_Manville ]That’s great, thanks for quick response - will get averaging!!
I had one of these appeals and was a bit thrown at first by the fact that the ESA benefit week was different to the standard working week (from memory, Tuesday to Monday in her case). It may produce different averaging, although I can’t remember what caselaw says, if anything, about this.
Worth a look at https://www.rightsnet.org.uk/welfare-rights/caselaw/item/period-over-which-to-average-fluctuating-earnings-for-purposes-of-esa-permi if you missed it
My client incurred a substantial overpayment due to exceeding PW limit but the claim wasn’t killed. It was only suspended for the weeks in which she went over the limit. I think that was an oversight on their part but wasn’t going to argue
So if someone is in receipt of SDP (in esa support group and hb) and they earn over the pw limit, they are able to make a new claim for esa (due to SDP in hb) but they are unable to link the plcw so have to start the assessment process again?
So if someone is in receipt of SDP (in esa support group and hb) and they earn over the pw limit, they are able to make a new claim for esa (due to SDP in hb) but they are unable to link the plcw so have to start the assessment process again?
Coukd they not link the plcw if it was less than 12 weeks that they exceeded the pw limit?
So if someone is in receipt of SDP (in esa support group and hb) and they earn over the pw limit, they are able to make a new claim for esa (due to SDP in hb) but they are unable to link the plcw so have to start the assessment process again?
Coukd they not link the plcw if it was less than 12 weeks that they exceeded the pw limit?
As I recall, the linking rules state “unless your earnings exceeded the PWL then the plcw will link if <12 weeks gap.”
Ah! Thanks