SSP Entitlement Loophole?

bclmsn

All, hoping some people here may be able to give some more detailed help;

A relative of mine has recently had knee surgery to replace an ACL and this has required her to be signed off from work for approximately 4 months.

Her employer assured her that she would be eligible for SSP, and on a quick check we agreed as she met the headline criteria: worked at the company for over 8 weeks, has an average weekly income of over £116 etc.

Around a month after having the surgery, she has received an SSP1 form from her employer’s HR department stating that her average earnings do not meet the average weekly level.

I ran these calculations through the government tool for employer’s a few times until I (think I) figured out what’s going on. On the day before her operation, the first day of her sick leave, she had been employed for a total of 9 weeks and 6 days, due to receive her third payslip on the day of her operation. As such, the ‘relevant period’ of 8 weeks used for calculating average weekly income was her first two payslips - one being only for two weeks worth of work when she started at the company. Hence the calculation of her average weekly income comes out at £110, £6 too short.

By hypothetically changing her day of sick leave by one or two days forwards, she would be entitled to approximately £2000, but instead is receiving £0. This cannot be done, due to the date being written on the sick note from her GP, but this seems like a glaring problem?

Granted, she lives at home, but the alternative arrangements are unusual; she is being made to search for new jobs to satisfy requirements for Universal Credit (I assume some sort of throwback to JSA?) despite currently being under employment contract with her current employer from which she is taking sick leave. She is also studying a part-time college course which requires some form of income to complete - the intention was for the SSP to fill this void.

Is there any advice from people who have experienced similar to this? Is it worthwhile disputing the decision with HMRC? The loophole I perceive is this ‘employed for 8 weeks’ business but then the average earnings not being calculated from the immediate 8 weeks prior to the first day of sick leave - could this be disputed on this basis?

Thanks in advance.

pmlindyloo

My thoughts.

I wonder if this is something to do with the way payroll does the calculations.

For instance, their system would only include actual earned money (hence the last month's payment not showing) rather than her daily rate of her worked hours?

It might be a good idea for her to telephone payroll and find out if this is the case and whether it can be recalculated.

If they refuse then it is worth contacting HMRC and asking them.

As regards UC and searching for work I am wondering whether she is only working part time hours at her current job and UC is expecting her to increase her hours/look for a second job to meet the 35 hrs a week requirement.

She needs to speak to her work coach. If her doctor is issuing her fit notes for this period then they may change her claimant commitment to reflect her present level of fitness and being able to work.

TELLIT01

If the company has calculated the average wage on the basis of the SSP guidance, it is not a loophole. It is simply a case that the employee does not qualify. If she is signed off work presumably she will be able to claim UC on the grounds of illness because there is no entitlement to SSP.
From what is said about the person's employment / study I suspect there won't be any entitlement to new style ESA but it's worth checking out.

chrisbur

bclmsn wrote: »

I ran these calculations through the government tool for employer’s a few times until I (think I) figured out what’s going on. On the day before her operation, the first day of her sick leave, she had been employed for a total of 9 weeks and 6 days, due to receive her third payslip on the day of her operation. As such, the ‘relevant period’ of 8 weeks used for calculating average weekly income was her first two payslips - one being only for two weeks worth of work when she started at the company. Hence the calculation of her average weekly income comes out at £110, £6 too short.

.

If you have another look at the calculator you will get to this question...
"On (made up a date to get here) had you paid your employee at least 8 weeks of earnings?
Yes, paid at least 8 weeks earnings
No, paid less than 8 weeks earnings
No, employee is new and fell sick before their first payday"

The old guide book had the instruction....
"Where the last normal payday before the PIW has been established but previous paydays covering at least eight weeks’ pay have not, regulations provide for an employee’s AWE to be calculated differently."

So I would suggest that although had been at work for over 9 weeks at the start of the PIW less than 8 weeks had been paid.
As such the option "No, paid less than 8 weeks earnings" should be picked. This then leads to a different way of calculating entitlement by basing it on total earnings divided by number of days that those earnings cover.

calcotti

Was she working from April 2016 to March 2018 and earning over £116/week. If so can claim new style ESA (because not entitled to SSP) this can be backdated to start of period of illness subject to a 7 day waiting period). Any ESA will be deducted from ESA but the backdating may be helpful.

If they have Fit Note the DWP should be reflecting this in the work search requirements. They should also have started a Work Capability Assessment and issued a Capability for Work questionnaire for completion.

bclmsn

chrisbur wrote: »

If you have another look at the calculator you will get to this question...
"On (made up a date to get here) had you paid your employee at least 8 weeks of earnings?
Yes, paid at least 8 weeks earnings
No, paid less than 8 weeks earnings
No, employee is new and fell sick before their first payday"

The old guide book had the instruction....
"Where the last normal payday before the PIW has been established but previous paydays covering at least eight weeks’ pay have not, regulations provide for an employee’s AWE to be calculated differently."

So I would suggest that although had been at work for over 9 weeks at the start of the PIW less than 8 weeks had been paid.
As such the option "No, paid less than 8 weeks earnings" should be picked. This then leads to a different way of calculating entitlement by basing it on total earnings divided by number of days that those earnings cover.

Thank you! I must have been overlooking that it is ‘paid less/more than 8 weeks earnings’ rather than ‘employed for less/more 8 weeks’, hence creating my own aforementioned loophole.

I’ve just tried running it through again, selecting the ‘paid less than 8 weeks earnings’ option and it appears she’s entitled to around £1,700. Therefore it seems likely that her employer has calculated her SSP entitlement incorrectly - should I recommend she contacts the HR/payroll department of her company or the HMRC SSP disputes team?

I’m a bit out of my depth with the Univeral Credit process and terminology but I will be sure to pass on all of the advice, thank you.

calcotti

I would suggest going back to the employer in the first instance and only raise a dispute if the response is not satisfactory.