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

Permitted work - old style ESA

S Holman
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Welfare Rights, Redcar & Cleveland Council

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Hi
I am looking for some advice for a case I am dealing with.
Young man aged under 25 and receiving old style ESA - WRAG and PIP enhanced daily living and standard rate of mobility. He was working a few hours a week and was offered 30 hours weekly with the company as an apprenticeship. He is earning £124.50 weekly. His ESA claim was closed but when I spoke to social services Learning Disability team they are going to support him with the employment - employability officer employed through LA. I requested PW1 form to be issued and the supported employment section of the form was completed by the LA employee who will be supervising the employment.
I have spoken with ESA today to be advised that the DM has refused the permitted work on the basis that the employment was not secured by the LA employment support officer. I have checked the regulations and the DMG for further clarification and from what I can see the work only needs to be ‘supervised’ by a person employed by a public or local authority and the earnings only need to be less than 16 hours at national minimum wage
.
My questions are;
1.He is under 20 and a lower rate of NMW applies - in which case his earnings exceed. Would the appropriate rate for his age be used in the calculation by the DM or the over 25 rate? It just states in the regs earnings less than 16 hours at NMW.
2. The DWP factsheet on supported permitted work refers to ’ a few hours a week’ and obviously he is working 30 hours but on a much lower hourly rate as an apprentice. Would the fact he is working more than 16 hours weekly impact on a refusal by the DM - the regulations do not state hours just earnings.
3. Is anyone aware of anything relating to permitted work that would indicate the employment has to be secured by the LA employment officer rather than just supervised.

Grateful for any further information to help as I am considering requesting an MR of the decision when it arrives.

Sue

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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Reg.2 of the ESA Regs 2008 defines NMW:

National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 (rate of the national minimum wage)>

It’s slightly more complicated as the 1999 Regulations have been revoked from 6 April 2015, and HMRC guidance states that any such reference should be to the 2015 Regulations even if referring to a pay reference period which ends before that date.

Reg.4 of the 2015 Regs sets out different rates according to different ages, so I can’t see an obvious way to argue that a higher rate than that applicable for his age should be applied.

Elliot Kent
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Shelter

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On the third question - isn’t the problem here more about the logic of decision making?

If I am understanding the narrative correctly:
(1) Your client is on ESA
(2) Your client takes up the work
(3) A decision is made to terminate the ESA
(4) The LA then agrees to supervise the employment
(5) The PW1 is submitted
(6) Requests are then made for the decision to be changed

If that is right, then isn’t the problem that the work was not supervised at the date of the decision? As the decision maker cannot revise the decision on the basis of circumstances which were not obtaining at the date of decision, doesn’t that preclude consideration of the LA’s involvement as a putative supervisor anyway?

[ Edited: 8 Sep 2020 at 09:35 am by Elliot Kent ]
Charles
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Paul_Treloar_AgeUK - 08 September 2020 09:09 AM

Reg.2 of the ESA Regs 2008 defines NMW:

National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 (rate of the national minimum wage)>

It’s slightly more complicated as the 1999 Regulations have been revoked from 6 April 2015, and HMRC guidance states that any such reference should be to the 2015 Regulations even if referring to a pay reference period which ends before that date.

Reg.4 of the 2015 Regs sets out different rates according to different ages, so I can’t see an obvious way to argue that a higher rate than that applicable for his age should be applied.

Reg 11 of the old NMW regs only specified the highest rate, so I presume the same applies now.

This is backed up by paragraph 41190 here.

Paul_Treloar_AgeUK
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Charles - 08 September 2020 11:46 AM

Reg 11 of the old NMW regs only specified the highest rate, so I presume the same applies now.

This is backed up by paragraph 41190 here.

Well no because those regs are revoked as per the HMRC guidance I posted. As such, the 2015 regs stand in their place and reg.4 is equivalent of reg.11. Otherwise NMW would be £3.75 an hour or whatever it used to be.

Charles
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I’m not sure I agree that we simply have to look at Reg 4 of the new regs, but either way Reg 4 has since been amended, and now only includes the highest rate (National Living Wage). The rest of the rates are now in Reg 4A.

See here:

https://www.legislation.gov.uk/uksi/2016/68/regulation/3/made