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Thread: ESA stopped after Health assesment, JSA

  1. #1
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    ESA stopped after Health assesment, JSA

    Hi, I would like to ask few questions about Benefit system in the UK, as I am EEU citizen it's quite hard to understand all of the rules that apply and it's quite different to Europe system. I have been working as selfemployed subcontractor ( handyman) on building site than I had injured my knee. Acl torn. So I stopped working and applied for ESA as I wasnt fit for work I was doing. I received contribution based ESA from 28 february till 3.july when it was stopped as I failed Health assesment. Unfortunatelly, after that I had appoitment with ortoped who said I need surgery which is due someday in september hopefully. I was hoping to get surgical treatment while I was on ESA. I actually dont undestand who is find not fit for work in UK how serious your condition must be to get main ESA support, as back in Europe you just need to have fit note from doctor according to your condition. So I dont know if there is point to ask for mandatory reconsideration as even I have som other issues as irritable bowel syndrome, and I am depressed I could do for example som office job ( unfortunatelly is hard to get one). Also I dont know if I will be able to apply for ESA again after my surgery as my condition gonna be worse.

    Meantime I applied for JSA as I didnt find a job yet, but today I received a letter from DWP that I am not entitled to Jobseekers Allowance. They decided that I dont meet requirements for the right to reside test (not re-established a right to reside other than a Jobseeker) and therefore for benefit purposes only I am not considered to be habitually resident in the UK. This is what I really dont understand. I have been living in the UK for last 5.5 years pernamently. So I should have pernament resident status already and therefore have the right to reside.

    Can anybody help. It would be much appreciated.

    Thank you

  2. #2
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    Hi and welcome Tony

    This sounds like a job for Citizens advice bureux, although others may have more insight
    Anything expressed is my opinion only and is offered in good faith. It is either from my own experiance or what I have learned on my journey. Take it for what it is or leave it alone. With best wishes D.

  3. #3
    Senior Member nukecad's Avatar
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    Hi Tony,

    Being an EEA citizen you do need to show the 'right to reside' to be able to claim certain benefits.
    (This is a different 'right to reside' than a non-EEA citizen has to show).

    There is also a 'robust' (some would say unfair) Habitual Residence Test for EEA citizens.

    And in addition to claim JSA (or Universal Credit) as an EEA citizen you have to be able to show a 'Genuine Prospect of Work'.

    As far as I know you don't need to show all the above to claim ESA but the problem you seem to have there is in the severity of your injury.
    As you say yourself that your injury is not severe enough to prevent you doing an office job then that would mean it's not severe enough to qualify for ESA.
    But because your work in the UK up to now has been as a handyman on a building site and not in an office, then your injury means you have no 'Genuine Prospect of Work' as a handyman to be able to claim JSA.

    It looks like you have 2 options, it's hard to decide which is the best or if you should persue them both.

    You can ask for a MR on the ESA decision.
    You have left it a bit late as you are supposed to ask within a month of the decision so only have about a week left.
    The letter advising surgery may help show that your injury is worse than assessed. (Further Medical Evidence).
    But if by your own admission you could do office work then it would seem to be a lost cause, to qualify for ESA you must be unable to do any kind of work.

    You can ask for a MR on the 'Habitual Residency Test'.
    I have no idea how to advise about challenging this, but here is the Citizens Advice webpage about it:
    https://www.citizensadvice.org.uk/be...esidence-test/
    At the bottom of that page ther are further links about getting further support, about how the DWP make the decision, and about how to make a MR.


    Personally I would get a request for MR on the ESA started and tell them you have Further Medical Evidence to send.

    Then I would contact the Citizens Advice and make an appointment to get help with both this and with challenging the Habitual Residency decision.

    Keep an eye on the dates for requesting a MR on this Habitual Residency decision, you don't want to leave that too late.


    There is a 3rd option in that you could make a new claim for ESA.
    However because you have already just been found fit-for-work at a Work Capability Assessment this would not pay anything until you have had another assessment and decision.
    (Unless you can show a new or significantly worsened condition, which I don't think you can at this point).

    You seem to be stuck in the middle, too ill to work but not ill enough to claim ESA.
    Many people find themselves stuck there, but your situation is further complicated by being an EEA citizen.

    I hope that helps explain your options, and good luck with getting something sorted out.
    Last edited by nukecad; 07-24-2017 at 11:14 PM.
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    Senior Member nukecad's Avatar
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    Further to the above, and I'm not sure if this is still relevent.

    I thought I remembered a similar situation to this and so did a bit of searching.

    I found this from December 2015, which is a bit old as legislation regarding benefits for foreign nationals in this country is changing fast these days.
    http://www.youreable.com/forums/show...ll=1#post88628

    What I had found back then was that just claiming ESA could change your 'worker' status and thus your residency status.
    It could be that just making a claim for ESA is what has caused your Habitual residency Test for JSA to fail.

    Like I say be careful when reading that thread it may very well be out of date, current rules and legislation may have changed (I'm guessing not for the better).

    Unfortunately the original poster of that thread never came back to say how she got on.


    It all suggests that you need advice from someone who is up to date with the current laws on EEA nationals claiming benefits.
    (I would still get that ESA MR going soon though).
    Last edited by nukecad; 07-24-2017 at 11:20 PM.
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    Thank you very much nukecad, I don't think there is anybody more up to date with the current laws than you. I have been many times in Citizen advice bureau and I dont find people there having enough knowledge about the problematic.

    Sorry, I don't want to be rude or something but It looks to me like System is trying to get rid of EEU nationals. I have been here more then 5 years I should have permanent resicency status so I dont understand how claiming ESA could change my worker status. Also I had made enough contribution to be qualified for contribution based ESA so I should now get contribution based JSA as I was on ESA only 4 months.

    This system is just absurd. And I am really stuck in here. I would be more than happy working, but it looks impossible for me to find a job even I am master qualified architecturtal assistant. Thats why I was working on building site (not because thats only job I can do) BUt according to english system I am not habitually resident, I dont have right to reside and dont have genuine prospect of work. So I am asking who does? Thank you.

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    Ok, here is another thing even I received a letter saying I am not entitled to Jobseeker Allowance they paid many to my account. Is that normal?

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    Are you sure that it is a payment of JSA and not ESA which is paid in arrears? Might need to telephone to check.

    I agree that you should put in a mandatory reconsideration for ESA adding your new evidence about needing an operation. You need to do this quickly. At least then you can return to ESA if you have to go to appeal.

    I agree that you need some advice about your habitual residency test failing. It is a complex area but, from what you say, both the 5 years giving you the right to permanent residency and the fact that you may be eligible for contribution based JSA could be challenged. I also thought that you retained your worker status if you were previously a worker and then became too ill to work.

    BUT I am not an expert in this field - just giving a few possibilities that you might wish to raise with a professional.

    You do need professional advice and if CAB is unable to provide it then you can use the following link to find an adviser (I hope)

    https://www.turn2us.org.uk/Benefit-g...esidence-T#EEA nationals

    If all fails go back to CAB and ask to be signposted to someone who has expertise in this area.

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    pmlindyloo thank you very much for your advice and time. I am pretty sure that is a payment for JSA.

    I received it today 25.7.2017 NINO DWP JSA 167.09

    the latest payment from DWP was on 4.7.2017 NINO DWP EESA 146.20 and my ESA claim was stopped on 3.7.2017 so I really doubt is a payment for ESA but I might be wrong.

    I also called DWP according to the letter. They told me they will send me a full explanation why I failed Habital test but from what I discussed it looks like they did that decision becouse I didnt provide documents that provide proof of my selfemployment before ESA claim. Which is totaly wrong first of all I asked Job center plus employee what evidence he needs. I had with me all the payslips, invoices, P60 etc for last 5years. He took few of them and said thats gonna be enough and if not he told me they will contact me and ask for more evidence if they need more.

    Now I am going to sign for my JSA as I don't know if the claim is still on or not.
    Last edited by TonyTutto; 07-25-2017 at 01:53 PM.

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    Quote Originally Posted by TonyTutto View Post
    pmlindyloo thank you very much for your advice and time. I am pretty sure that is a payment for JSA.

    I received it today 25.7.2017 NINO DWP JSA 167.09

    the latest payment from DWP was on 4.7.2017 NINO DWP EESA 146.20 and my ESA claim was stopped on 3.7.2017 so I really doubt is a payment for ESA but I might be wrong.

    I also called DWP according to the letter. They told me they will send me a full explanation why I failed Habital test but from what I discussed it looks like they did that decision becouse I didnt provide documents that provide proof of my selfemployment before ESA claim. Which is totaly wrong first of all I asked Job center plus employee what evidence he needs. I had with me all the payslips, invoices, P60 etc for last 5years. He took few of them and said thats gonna be enough and if not he told me they will contact me and ask for more evidence if they need more.

    Now I am going to sign for my JSA as I don't know if the claim is still on or not.
    Since ESA is paid in arrears and they sometimes use the 'signature' JSA when doing certain payments then may well be ESA. You will need to check.

    I doubt very much that they would be paying you JSA if you failed the HRT.

    All now beginning to make sense that they haven't got the evidence they need that you were a 'worker' before you claimed ESA. It looks like the employee from Job Centre made a mistake not realising the importance of what was needed.

    Anyway, onwards and upwards.

    Ring them again and ask about your payment. Then ask what evidence you need to send them. Write it down and read it back to them. Ask 'Do you need anything else?'

    Then send them the documents requested. Keep copies of everything. Write your NI number on each paper you send. Enclose a covering letter with your address, NI number and saying 'referring to telephone conversation on *** I am sending *****

    When you telephone you could also ask whether you are entitled to contribution based JSA as this would have no requirement for habitual residence.

    Good luck and let us know how you get on.

  10. #10
    Senior Member nukecad's Avatar
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    Pmlindyloo has covered it, and raised a point I didn't about the ESA MR.

    Get the ESA MR started, once it fails then you can make an appeal to the tribunal, and can then go back onto ESA whilst waiting for the appeal to be heard.
    At least that should get some money coming in, but it may take a month or so before that can happen.

    That may not be needed if they are going to keep paying JSA, but it's as well to get it started anyway.

    It does sound now as though your HRT failed because you were not told the right evidence to send.
    Hopefully you can now find exactly what they need to see and get that sorted out.

    I don't want to be rude or something but It looks to me like System is trying to get rid of EEU nationals.
    Not rude at all, many of us would agree with your point of view, and who knows what's going to happen in the next couple of years?

    I'm not sure about permanent residency status, it seems like you have it automatically after 5 years and don't need a document, but you can apply for a document as well? (And it's supposed to be being replaced by something else once we leave the EU).
    https://visas-immigration.service.gov.uk/product/eea-pr

    This webpage gives the latest information residency and is being updated as exit negotiations continue:
    https://www.gov.uk/guidance/status-o...u-need-to-know

    Good luck, and keep letting us know how you are getting along with it.
    Last edited by nukecad; 07-25-2017 at 04:59 PM.
    I'm intelligent enough to know that I don't know everything.
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