ESA Permitted Work Average hours/earnings

TELLIT01

As an example, if somebody is claiming ESA because of back problems and does Permitted Work as a labourer it would call the validity of their ESA claim into question. If the same person took up a desk job, or any other job which didn't put a strain on the back, there would not be an issue.

Tomsdottir

To be clear about permission: the ESA Regs* do not say that you need permission from the DWP for the work to count as permitted.

Rather, the DWP view starting work as a change of circumstance for ESA which you must notify to them (notify as opposed to seek permission). And they are within their rights asking you to notify a particular change of circumstance.

The form you refer to is an example of the DWP confusing their internal administrative arrangements with what the law actually says. There is no case law that suggests failing to get permission from the DWP means you lose entitlement, either.

What if you haven't notified them before you start permitted work? The fact that you haven't notified a change of circumstance which you've been told to notify, of itself doesn't necessarily mean you lose entitlement.

Instead, if your work actually is permitted work, the worst that should happen is that your ESA is suspended while they ask you for more information, then put back into payment, along with any arrears owing to you, once you provide it.

If your work turns out not to be permitted work (for example, in any week in which your earnings are too high) then the significance of the fact that you didn't notify them of your work is that any overpayment is much more likely to be a recoverable overpayment. But again, it's not the fact that you failed to tell them about the work which gives rise to the overpayment. It's the fact that you earned too much in that week.

* reg 45, if you want to immerse yourself in the delightful language of the regulations

Tomsdottir

There is no averaging of earnings for permitted work earnings limit purposes. You find this rule in the ESA Regs, reg 45(4). This reg says that this type of work is permitted work if it is "work which is done for less than 16 hours a week, for which earnings in any week do not exceed 16 x National Minimum Wage..." Although reg 45(9) says that you can average hours, there is no provision in the regulation for averaging pay. This means that in weeks 2 and 3 of your example, there is no entitlement to ESA.

Regularly exceeding the permitted work earnings limit may* make it more likely that the DWP will review your award to see if you remain entitled - but that doesn't mean that they'll decide you aren't.

As people are pointing out, one of the main purposes of permitted work is to support people with disabilities to try out work to see how they get on.

What's more useful is to look at the descriptors where you picked up points in your work capability assessment and see whether there is anything about the work you'll be doing that suggests those points have changed. So for example if a claimant was awarded 15 points on Activity 1 because of inability repeatedly to mobilise 50 metres, there's nothing about doing work as a receptionist which would automatically suggest that their condition had improved. If on the other hand they had picked up 15 points on the "learning tasks" activity (can't learn how to complete a simple task such as setting an alarm clock) it wouldn't be surprising if work as a receptionist didn't lead the DWP to revisit their award.

* It won't always be the case that this happens. I can think of one case in my own experience where a claimant with severe epilepsy regularly exceeded the earnings limit, but because of strong evidence about the continuing severity of his condition, his ESA award wasn't revised. He was entitled to ESA in some weeks and working tax credit only in others.