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

Interaction btw permitted work and 12 week linking rule (ESA)

EKS_COTTON
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Tax and Welfare Rights Officer, Equity

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Total Posts: 288

Joined: 10 March 2014

I have a question about permitted work and the 12 week linking rule.

First, is it correct that if you exceed the permitted work limits, you are treated as automatically no longer having a limited capability for work - i.e. capable of work?  I am looking at reg 40(1) of the ESA regs 2008 - says a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work (excluding permitted work).

Not entitled to ESA is not the same as being found not to have a limited capability for work.

Second, then going on to regulation 44 ‘Claimants who are treated as not entitled to any allowance at all by reason of regulation 40(1) are to be treated as not having limited capability for work’

44(1) says Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 40(1), subject to paragraph (2), the claimant is to be treated as not having limited capability for work.

So does that mean those who work (exceeding permitted work limits) are to be treated as not having a limited capability for work?

I ask because according to the linking rules - you can’t be put back on the same rate and having not served the assessment phase if you were found to not have a limited capability for work?  But presumably you can reclaim?

Also regulation 44(2) says
(2) Paragraph (1) does not apply where the claimant remains entitled to a contributory allowance, but is not entitled to an income-related allowance by reason of regulation 40(1).

So does that mean that you get treated differently if you have been in receipt of CESA and if so how?

EKS