Too sick for JSA but refused ESA?

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zzzLazyDaisy
zzzLazyDaisy Posts: 12,497 Forumite
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in Benefits & tax credits
I read recently about a woman with epilepsy who was refused JSA as she was considered unfit for work, owing to the number of fits she was experiencing each day. She was advised to apply for ESA, but was ruled fit for work, and lost her appeal.

My question is... what happens when someone is considered to be too sick to claim JSA but not sick enough for ESA?
I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.

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  • merlin68
    merlin68 Posts: 2,405 Forumite
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    income support i suppose.
  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
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    I don't think it can be as simple as that, since you have to be in a strictly defined category to qualify for IS (child under 5, carer, etc).
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • Morlock
    Morlock Posts: 3,265 Forumite
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    zzzLazyDaisy wrote: »
    My question is... what happens when someone is considered to be too sick to claim JSA but not sick enough for ESA?

    The fact that someone is not sick enough to claim ESA insinuates that they are fit enough to claim JSA. Whether or not that person then agrees to JSA conditionality is up to that person, if that person does not agree, then he/she gets nothing.
  • harry7075
    harry7075 Posts: 261 Forumite
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    What happens? I'll tell you become a lost statistic. Not claiming anything so on no government figures.
  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
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    Morlock wrote: »
    The fact that someone is not sick enough to claim ESA insinuates that they are fit enough to claim JSA. .

    Yes, I agree, but in the case in question, she was not allowed to claim JSA because she was deemed unfit for work by the jobcentre.

    This is not the first case of its kind that I have come across, hence me asking the question. I suspect that she would need to involve her MP.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • rogerblack
    rogerblack Posts: 9,446 Forumite
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    At the moment, there is a 'loophole'.
    If the last decision made by the DWP (not the tribunals service) that you do not qualify for ESA has been over 6 months ago, you can reapply for ESA, only needing a sicknote.
    If you have more than one epileptic fit a week, you qualify for ESA.

    If the decision of the tribunal is that she did not qualify because she does not completely black out, this is an error in law, and she needs to appeal the tribunal decision, as well as making a new application for ESA.
  • Cpt.Scarlet
    Cpt.Scarlet Posts: 1,102 Forumite
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    It is perfectly possible to be too sick for JSA and too fit for ESA, leaving you with nothing.

    It's unlikely an MP can do anything as they cannot interfere in the legal processes to decide benefit entitlement.

    There are lots of non-persons already in the country due to the time limiting of ESA(CB), as someone said earlier, they no longer appear in any statistics.
  • Morlock
    Morlock Posts: 3,265 Forumite
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    zzzLazyDaisy wrote: »
    Yes, I agree, but in the case in question, she was not allowed to claim JSA because she was deemed unfit for work by the jobcentre.

    The Jobcentre cannot deem her unfit for work if she conforms to conditionality, there can be some discretionary flexibility for individuals. I suspect that the claimant suggested, inadvertently perhaps, she could not meet certain requirements, and was therefore deemed ineligible to claim.
  • rogerblack
    rogerblack Posts: 9,446 Forumite
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    Morlock wrote: »
    The Jobcentre cannot deem her unfit for work if she conforms to conditionality, there can be some discretionary flexibility for individuals. I suspect that the claimant suggested, inadvertently perhaps, she could not meet certain requirements, and was therefore deemed ineligible to claim.

    Implying that claimants must know exactly the right way to shade the truth to be eligible to claim.
    And even then, they cannot be ill for more than 2 weeks a year, or be ineligible for JSA.
    And they have to be genuinely seeking work of at least 16 hours, to qualify. (Assuming they have their jobseeking requirements modified to make it easier)

    And comply with the work program requirements.

    And 'the jobcentre cannot' does not mean 'the jobcentre does not'.
  • jobseeking_help
    jobseeking_help Posts: 189 Forumite
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    rogerblack wrote: »
    Implying that claimants must know exactly the right way to shade the truth to be eligible to claim.
    And even then, they cannot be ill for more than 2 weeks a year, or be ineligible for JSA.
    And they have to be genuinely seeking work of at least 16 hours, to qualify. (Assuming they have their jobseeking requirements modified to make it easier)

    And comply with the work program requirements.

    And 'the jobcentre cannot' does not mean 'the jobcentre does not'.


    Sorry Roger - just wanted to say I'm a big fan of yours - always read your posts with great interest. Very concise.

    Can I just add that of course you do not have to be fit for work on JSA. So long as you can make it to the jobcentre to sign on and are 'available for work' and 'actively seeking employment' then that's OK as far as DWP are concerned.
    Unfortunately so many ex-ESA claimants are not appealing against decisons and are on JSA or indeed having appealed against ATOS decison are being told, erroneously by BDC to claim JSA

    Many thanks
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