12 April 2014

Falling between ESA and JSA is possible

[Originally published 8 Feb 2014] 
In the UK, there are two main welfare benefits for people of working age. Simply put, JSA is for people who are able to work but can’t find any while ESA is for people too sick to work. In theory, everyone is covered by this system but I’d been hearing reports of people falling through a gap between the two benefits. People not sick enough for ESA but too sick to claim JSA. Here’s a typical story:

Government benefit changes meant he was assessed for the new Employment and Support Allowance in October. But on October 29 his £124 a week payments were stopped because he was assessed as ‘fit to work’ and told to claim Jobseekers Allowance.

“But when I went to the Jobcentre, the man there looked at me and said ‘I can see you’re clearly not fit to work’ and wouldn’t allow me to claim,” he said. “What was I supposed to do?”

I thought this couldn't possibly be true and the Department for Work and Pensions are with me on this:

“a person cannot be in a position where they are ineligible for Employment and Support Allowance (ESA) and not fit enough to meet the conditions required for claiming Jobseeker's Allowance (JSA)" https://www.whatdotheyknow.com/request/claimants_not_eligible_for_esa_o

To find out the truth I submitted a "Freedom of Information" request to the DWP via the What Do They Know site. You can't really ask "Is this true?", you have to exploit your right to access recorded information, basically, documents they already have or can easily knock together. 

So my request:
  • Set out the alleged "problem"
  • Commented that since the problem was serious, the DWP would probably have produced guidance for staff and carried out research on the issue
  • Asked for documentation on the research and guidance
You can see my full request, subsequent correspondence and the "answer" here but you might find my analysis an easier read
  • So far as I can see, they haven't done any research - perhaps they now will?
  • They have eventually come back with some "new" guidance about ESA to JSA Transitions I call it "new" because at the time of writing,  Google can only find it via my FOI request. Let's pick out some bits of that guidance:

23. Although suitable work and jobsearch activities are diagnosed for claimants with health conditions or disabilities, under no circumstances should an opinion be expressed about whether that health condition means they are capable of work, or not. That decision has already been made by a Decision Maker, based on evidence supplied by a medical expert.

  • This item means that no JCP member of staff should tell a claimant they are too sick for JSA. However this guidance is somewhat buried and staff could easily be unaware of it. Let’s hope it’s easily and frequently accessed by JCP staff on an internal system.

24. If the claimant questions whether they are fit enough to work, it should be explained to them that while claiming Jobseeker’s Allowance, they have to be actively seeking and available for work. If they do not feel that they can meet either of these requirements, or cannot agree the types of jobs they will look for and the activities they will undertake to do so, the claim cannot be continued.
  • Even if challenging the Work Capability Assessment (that stopped their ESA) as many do with eventual success doesn’t automatically stop a claim for JSA, this seems likely to trip up many claimants. Their options seem limited to destitution or agreeing to actions that they believe they are incapable of
  • This second "choice" is particularly poisonous. Not only does it place the claimant at risk of failure and sanctions,  they have been “forced” to lie to the JCP staff which even if undetected damages the relationship and possibly the mental health of the more vulnerable. 
  • There is another, less obvious hazard. If the claimant goes on JSA and subsequently has more than 2 periods of sickness or periods of sickness exceeding two weeks, their JSA is stopped. Normally, a JSA claimant could fall back on ESA but "passing" the Work Capability Assessment within the last 6 months bars that unless the original illness has worsened considerably or they have a brand new one. This is particularly likely to snooker somebody with a variable illness or disability such as Bipolar Disorder. 


1. Claimants are likely but not certain to fall between the two benefits
2. The DWP have no idea how prevalent this is
3. Even if the claimant successfully navigates from ESA to JSA, further illness could easily knock them off benefits altogether.

Bluntly, the story about the disabled man in Gloucester could well be true and if it isn't, that more by luck than DWP effort.

PS 20/06/14: This briefing from Citizens Advice includes stories from their case-load of people falling between the two benefits.

1 comment:

Bryan R said...

Paragraph 13003 of the Decison Makers Guide states as follows:

13003 A determination on whether a person is, or is treated as, capable or incapable of work for entitlement to any benefit, allowance or advantage also determines entitlement for any other benefit, allowance or advantage for the same period1.
1 SS CS (D&A) Regs, reg 10

Reg 10 of the Social Security and Child Support (Decisions and Appeals ) Regulations 1999 as amended. Reg 10 provides:

“Effect of a determination as to capacity or capability for work
10.—(1) This regulation applies to a determination whether a person–
(a) is capable or incapable of work;
(b) is to be treated as capable or incapable of work;
(c) has or does not have limited capability for work; or
(d) is to be treated as having or not having limited capability for work.
(2) A determination (including a determination made following a change of
circumstances) as set out in paragraph (1) which is embodied in or necessary to a
decision under Chapter II of part I of the Act or on which such a decision is based shall
be conclusive for the purpose of any further decision.”

The JSA decision maker is therefore not entitled to look behind the ESA decision regardless of what the clamant or the claimant’s doctor may say. It is certainly not for the JSA decision maker to refuse the claim because it is alleged that the claimant may not be fit for work.

That is not the end of the matter because the claimant may restrict his availability for work (without facing sanction) in view of his health. Regulation 13(3) of the JSA Regulations 1996 as amended provides:

“(3) A person may restrict his availability in any way providing the restrictions are
reasonable in the light of his physical or mental condition.”

So there we are, a person who has asked for an MR of an ESA decision will not only be able to claim JSA pending the MR, he can also restrict his availability for work whilst awaiting the MR. The JSA decision maker must accept any reasonable restriction that the claimant may wish to make