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10-Mar-2020 22:20

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Thanks for all the feedback from my original inquiry.Back in late June I saw our client and from our meeting we decided to pursue the route of asking for Financial Redress for Maladministration on the basis that he was misled by JC , to clain Jobseekers Allowance when appealing the original ESA refusal decision.It would of course be more desirable if there was some challenge to Reg 31 itself (especially as it seems to fly in the face of years of previous practice in respect of JSA while IB was under appeal) but i cannot see any obvious route to such a challenge. Client got WCA decision dated 1/7/2010 and claimed JSA as soon as she could as she was worried about Council Tax Benefit.See Welfare Rights Bulletin 207 Re assurance that in just such a case that arrears will be paid: think it all depends on whether they had, or were treated as having, limited capability for work when they claimed JSA, and then what the JSA decision maker did when the claim for JSA was made - whether they treated the claimant as not having LCW because the claimant failed the medical, in which case the Tribunal decision would make invalid the JSA decision, or whether they actually used reg 31 and superseded the decision on being treated as having LCW while appealing, in which case I reckon an ex-gratia payment is maybe the best option… Thank you for the link to the Bulletin, I would be very interested to see the email regarding backpayments, it certainly doesn’t happen in practice due to Reg.31 but I can’t help but wonder if that is why the JC staff seem unaware of the issue, they may have been told about this email or seen it. She has MH difficulties and the HCP had advised her that she could see she had the difficulties she had described but would not meet the very high threshold set by the WCA, so she didn’t think about appealing, until she spoke to me.Have a client who was refused ESA on 28/08/09, he then claimed JSA on 3/09/09 under advice from Jobcentre Plus, he lodged an appeal concerning the ESA that was received by the DWP on 5th October 09 (GL24 dated 30/09/09).He subsequently won his ESA appeal in late March 10 which detailed he should be placed in the support group. The DWP wiil not award the ESA due to his appeal, as they claim as he accessed JSA, from then he would not be considered as having limited capability for work.

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The service standards for JC say that they are responsible for giving claimants ‘accurate information’ to enable the claimant to ‘decide what to do’ and i wonder if the JC staff are/were actually aware of Reg 31 and it’s ramifications.

Advantages to claiming ESA are Permitted work earnings disregards and if on ESA long enough and then gets job of 16hours , she could get Return to work credit and benefit protection.