ESA payments while appealing

tomtom256

calcotti wrote: »

As a full time student he cannot claim JSA and may not meet the NI contribution requirements anyway if he has not had previous workqualify

But if he were to claim UC that would end any income based ESA claim anyway.

Yes I know but that info wasn't available when I posted.


He wouldn't be getting ESA now, as he has failed an WCA so would have no choice but to claim UC in this instance.


If tribunal fund in his favour the decision would put on UC and he would stay on that.

poppy12345

Students can only claim UC under certain circumstances. See links.
https://www.gov.uk/guidance/universal-credit-and-students
http://www.cpag.org.uk/content/universal-credit-and-disabled-students

calcotti

tomtom256 wrote: »

Yes I know but that info wasn't available when I posted.

My post was not meant as a criticism of your post - just clarifying information for the OP.

Alice_Holt

tomtom256 wrote: »

He wouldn't be getting ESA now, as he has failed an WCA so would have no choice but to claim UC in this instance.


If tribunal fund in his favour the decision would put on UC and he would stay on that.

No, This is incorrect I'm afraid tomtom256.

He can have his ESA payments restarted (at the assessment rate), once the appeal is lodged with the Tribunal Service. He will then stay on ESA pending the tribunal hearing (submitting fit notes).

If successful at tribunal, then his ESA payments will reflect the group he has been placed in, and a back payment made to the date of the incorrect DWP decision.
In effect the tribunal will place him in the same position as if the DWP had made the correct decision in the first place.
His ESA will continue.

There is no need to claim UC.

Please read the CPAG link I posted for more details.

Unfortunately many job centres and LA housing benefits depts have (and are) telling claimants failing ESA WCA's that they must now claim UC. As a consequence many claimants who also received PIP have now lost their disability premiums paid with ESA. Some are c.£4,000 pa worse off as a result of this incorrect "advice".

minimad1970

Alice_Holt wrote: »

No, This is incorrect I'm afraid tomtom256.

He can have his ESA payments restarted (at the assessment rate), once the appeal is lodged with the Tribunal Service. He will then stay on ESA pending the tribunal hearing (submitting fit notes).

If successful at tribunal, then his ESA payments will reflect the group he has been placed in, and a back payment made to the date of the incorrect DWP decision.
In effect the tribunal will place him in the same position as if the DWP had made the correct decision in the first place.
His ESA will continue.

There is no need to claim UC.



Please read the CPAG link I posted for more details.

Unfortunately many job centres and LA housing benefits depts have (and are) telling claimants failing ESA WCA's that they must now claim UC. As a consequence many claimants who also received PIP have now lost their disability premiums paid with ESA. Some are c.£4,000 pa worse off as a result of this incorrect "advice".

Thank you very much for your clear and easy to understand information.

tomtom256

Alice_Holt wrote: »

No, This is incorrect I'm afraid tomtom256.

He can have his ESA payments restarted (at the assessment rate), once the appeal is lodged with the Tribunal Service. He will then stay on ESA pending the tribunal hearing (submitting fit notes).

If successful at tribunal, then his ESA payments will reflect the group he has been placed in, and a back payment made to the date of the incorrect DWP decision.
In effect the tribunal will place him in the same position as if the DWP had made the correct decision in the first place.
His ESA will continue.

There is no need to claim UC.

Please read the CPAG link I posted for more details.

Unfortunately many job centres and LA housing benefits depts have (and are) telling claimants failing ESA WCA's that they must now claim UC. As a consequence many claimants who also received PIP have now lost their disability premiums paid with ESA. Some are c.£4,000 pa worse off as a result of this incorrect "advice".

Hi Alice,


Yep you are right, have read the CPAG link and that is not what is in DWP guidance, hence why incorrect advise is often given or people are advised to claim UC as they still need benefit in the mean time.


In pre UC days they would have transitioned to JSA then back to ESA pending appeal outcome, but that isn't an option with "new style" benefits.


I wrongly presumed they wanted to claim benefits again in the meantime. Knowing how slow an MR and an appeal can be.


I will certainly be using that link at work.

Alice_Holt

tomtom256 wrote: »

Hi Alice,


Yep you are right, have read the CPAG link and that is not what is in DWP guidance, hence why incorrect advise is often given or people are advised to claim UC as they still need benefit in the mean time.


In pre UC days they would have transitioned to JSA then back to ESA pending appeal outcome, but that isn't an option with "new style" benefits.


I wrongly presumed they wanted to claim benefits again in the meantime. Knowing how slow an MR and an appeal can be.


I will certainly be using that link at work.

Hi tomtom

Thanks.
It's interesting that the DWP guidance is incorrect. That could well explain why some many of the clients at my local CAB have been told to claim UC. when their ESA claim fails on a renewal WCA.

By the time they come to us, it's often too late, and even if we succeed at an ESA appeal (worthwhile because of the additional UC elements that can then accrual), they have lost the disability premiums that attached to ESA but aren't in UC. We do find it rather frustrating.

You're right about the backlog for appeals. In our area it's about 9 months.
At least for ESA the claimant can usually get payment pending the hearing, but for PIP it's 9 months without that income - which makes it very difficult for many people.

Best wishes.

calcotti

The tribunal delays also make it much harder for the tribunal to reach a correct decision about whether the decision they are reviewing was correct or not as the claimant before them is in many cases in a different health condition than at the time of the original decision (for better or worse).

minimad1970

Thanks for all the previous advice. As expected my son's MR was refused. He will now fill out the form to take it to a tribunal.

As part of his uni course he has to do 40 hours of work placement. His uni have offered him a paid position where he can spread the hours out according to how well he manages, no more than 20 hours a week, he starts tomorrow.

I know that if you're in receipt of ESA you can apply to do permitted work but how would this apply in his position?, he's in ESA limbo!.

He's sending the SSCS1 form back in the next couple of days.


Thanks for any advice.

dreamylittledream

minimad1970 wrote: »

Thanks for all the previous advice. As expected my son's MR was refused. He will now fill out the form to take it to a tribunal.

As part of his uni course he has to do 40 hours of work placement. His uni have offered him a paid position where he can spread the hours out according to how well he manages, no more than 20 hours a week, he starts tomorrow.

I know that if you're in receipt of ESA you can apply to do permitted work but how would this apply in his position?, he's in ESA limbo!.

He's sending the SSCS1 form back in the next couple of days.


Thanks for any advice.

If your son is a full time uni student and was in receipt of ESA(IR) then he must also be in receipt of DLA or PIP, otherwise he would be excluded.

And is thats the case then he should be treated as having Limited Capability for Work (and therefore in the WRAG by default) on the basis that he is a disabled student (regulation 33 of the ESA Regs 2008). The purpose of the WCA in such cases is just to establish if someone was limited capability for work related activity and therefore entitlement to the Support group.

Which rather suggests that the DWP's decision is wrong in law and it might be wise to point this out to them (in addition to lodging the appeal) to expedite the process.

As a side note you can still appeal on the basis he should be in the support group even if he is placed in the WRAG - although instances where people can satisfy the criteria for the support group and yet be capable of undertaking a full time university course are probably few and far between...

Oh and to answer your question he would need to apply for the work to be considered under the permitted work rules once he is back in receipt of some form of ESA - until that points its irrelevant.