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Thread: ESA and permitted work

  1. #1
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    ESA and permitted work

    Hi everyone, just like to pick your brains and see if anyone else is or has been in this position. My husband was on ESA in the support group and after 8 years of being off work asked if he could do permitted work. He filled in the relevant forms and got a job working 14 hours a week on minimum wage (therefore under the permitted working allowance) He gets paid either for 28 days (4 weeks) or 35 days (5 weeks), he doesn't get paid monthly, this is how his employers pay their employees. He gets 4 pay periods of 35 days and 8 pay periods of 28 days. However the DWP using their calculation of taking a payslip earnings x 12 then dividing by 52 gives an incorrect weekly wage when applying it to his 35 days pay period. Due to this his ESA has stopped and we are now at appeal stage at Tribunal. I have found information through the Government' sites on calculating wages and do know that the DWP can use an alternative calculation to work out days in employees earnings, which I'm using to dispute the Decision Maker' Decision.
    What I'm asking is has anyone else been in this situation and can they please give me some information, especially positive,
    on their outcome with the DWP and calculation of permitted earnings. As in my opinion if people like my husband get paid in this way it equates to 20 weeks out of the year that the DWP stop ESA, even though they are entitled to this benefit, due to their miscalculations.
    Thanks a lot
    WG
    Last edited by WendyG; 02-09-16 at 23:32. Reason: Oops mistake

  2. #2
    Senior Member nukecad's Avatar
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    Wendy,
    I somehow missed this earlier, my apologies.

    I understand what you are saying, he is being paid some 4 week periods and some 5 week periods, and the DWP are treating both of these as 'Months'.

    If you take the £7.20 living wage for the 5 week 'month' x12/52 this gives £116.3 per week, which is above the PWK limit of £115.50.
    (Conversely the 4 week 'months' work out at only £93.05 per week).

    This x12/52 is the normal way of calculating income under ESA when periods of payment can be defined as monthly.
    Decision Makers Guides 48080
    (see also DMG 48071 and example).

    I would say that you need to argue that the periods of payment cannot be defined as regular and certainly not as a 'month' and so this calculation should not apply.

    I don't know which 'alternative calculation' you are refering to, any chance you could give a weblink or another reference to it?

    I think that I would possibly be arguing for Averaging of amounts as per DMG 48094, with the period to be averaged being a full 52 weeks as this would mean "a more accurate weekly amount can be calculated" in accordance with DMG48094(3).

    Decision Makers Guides Ch48

    There may also be more about 'periods of payment' in DMG Ch41, I'll take a look later if I get time.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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  3. #3
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    Thanks for responding. The calculation I'm referring to is within the Welfare Reform Act, section 2 & 3, Schedule 1 Part 1 employment and support allowance regulations 2008, regulations 40, 41, 45, 88 and 94 (1)(b)(iv) schedule 7.
    This states
    (b) exceeds a week, the weekly amount is to be determined
    (iv) in any other case by multiplying the amount of the payment by 7 and dividing the product by the number equal to the number of days in the period in respect of which it is made.
    This calculation I'm using to contest against the DWP, as my husband's wage is paid either for 28 or 35 days. His pay period isn't in a recognisable cycle. This calculation gives a true reflection of his pay, which equates to being under the permitted earnings.
    I'm also arguing against the fact that a monthly pay period, in the eyes of the law/rules/regulations DMG Vol 9, CH 48: 48071 means a calendar month - running from any arbitrary date whereby that period expires with the date in the succeeding month. My husband does not get paid by a calendar month.
    Thanks for any help, much appreciated.

  4. #4
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    Oops sorry the calculation can be found in DMG, vol 9, CH 48, 48084.
    Thanks again for your help.

  5. #5
    Senior Member nukecad's Avatar
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    I would say that DMG 48084 is more for cases where the period of payment includes a partial week (so needs to be x7/No. of days to give a full week).

    I still think that I would be arguing for Averaging under DMG 48094(3).
    Although thinking again I would argue that each 5 week pay period should be averaged (Which would give the same result as DMG 48084).

    Whichever clause you argue, their regarding 5 weeks as 52/12 is obviously wrong and the tribunal should see this and rule accordingly.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  6. #6
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    Thanks again, it means a lot to me that someone else can understand my predicament.

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