Advice required - AVANTA and ESA assessment rate qeury

[confused.com]

Hello again folks,

I have received yet another mandatory request from Avanta to attend their offices and conduct work related activities.

I went to their offices today to explain once again that I am in receipt of ESA assessment rate pending appeal and therefore am not having to attend for mandatory work related activities of any description. I explained that I have to supply medical certificates stating that I am unfit for work in order to receive the ESA assessment rate. I also explained that I am not in receipt of the work related component of ESA.

The lady said that the rules have changed and that, regardless of the fact that I am on assessment rate only and supplying medical certificates that I do have to take part in work related activities. Apparently they base this conclusion on the 'fact' that ATOS found me fit for work.

Is it correct that the rules have changed and I do indeed have to attend Avanta for work related activities pending appeal?

Kind regards .... Lynn

[Flymo]

I went to their offices today to explain once again that I am in receipt of ESA assessment rate pending appeal and therefore am not having to attend for mandatory work related activities of any description.

Their explanation is incorrect, but their conclusion is correct.

You are only exempt from Work Related Activity if you are in the Support Group, if you receive Carer's Allowance / Carer's Premium or if you are the lone parent of a child under 5 (Regulation 3 of The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (SI 2011/1349)). Unless you fall into any of these mandatory exemptions, you can only defeat a mandatory requirement to undertake Work Related Activity by persuading a DWP decision maker the requirement is not "reasonable ... having regard to the person's circumstances" (Regulation 3(4)(a)).


In practice, I think you either have to attend or be sanctioned.

[confused.com]

Their explanation is incorrect, but their conclusion is correct.

You are only exempt from Work Related Activity if you are in the Support Group, if you receive Carer's Allowance / Carer's Premium or if you are the lone parent of a child under 5 (Regulation 3 of The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (SI 2011/1349)). Unless you fall into any of these mandatory exemptions, you can only defeat a mandatory requirement to undertake Work Related Activity by persuading a DWP decision maker the requirement is not "reasonable ... having regard to the person's circumstances" (Regulation 3(4)(a)).


In practice, I think you either have to attend or be sanctioned.

Hi .. it states that you have to be on the full amount of ESA for these rules to apply. I am only on assessment rate (same as JSA) until my appeal is heard. In other words I do not receive the 'work related' component of ESA. I know that this meant that you could not be mandated in any way to perform work related activities until the outcome of your appeal is known. This has been confirmed on more than one occasion by the DWP.

As far as I know they would have to pay me the 'work related' component in order for me to be to do work related activities. This is why I was wondering if the rules have changed recently, which is what they told me.

Kind regards - Lynn

[Flymo]

Hi .. it states that you have to be on the full amount of ESA for these rules to apply. I am only on assessment rate (same as JSA) until my appeal is heard. In other words I do not receive the 'work related' component of ESA. I know that this meant that you could not be mandated in any way to perform work related activities until the outcome of your appeal is known. This has been confirmed on more than one occasion by the DWP.

You've misread it.

It says, in Regulation 3(1), "... as a condition of continuing to be entitled to the full amount ...". In other words, if you do not comply with a direction to undergo Work Related Activity, you can be reduced to less that the full amount of benefit, i.e. sanctioned.

Whatever you've been told by the DWP is completely non-binding. The law has the last word.


I'll say it more plainly. There is no blanket exemption from Work Related Activity for people on the assessment rate of ESA, whether that is at initial application or pending appeal.

In any event, you are on the full amount of ESA - it is just that you do not currently have a Support Component or Work Related Activity Component.

[confused.com]

Hi .. it states that you have to be on the full amount of ESA for these rules to apply. I am only on assessment rate (same as JSA) until my appeal is heard. In other words I do not receive the 'work related' component of ESA. I know that this meant that you could not be mandated in any way to perform work related activities until the outcome of your appeal is known. This has been confirmed on more than one occasion by the DWP.

As far as I know they would have to pay me the 'work related' component in order for me to be to do work related activities. This is why I was wondering if the rules have changed recently, which is what they told me.

Kind regards - Lynn

P.S. When I queried this before the following was the info., that Vikstar gave me:
As you are appealing a fit for work decision, and have obtained a fit note from your G.P., you do not have to take part in WFI's/WRA.

I think the letter stating that you may have to take part in WFI's was on the assumption that you might have signed on for JSA.

Even though you will now be classed as having limited capability for work, as dictated by the fit note, you are not in the WRAG, nor are you entitled to main phase ESA or the WRA Component. You will receive assessment rate ESA only.

[Flymo]

This is why I was wondering if the rules have changed recently, which is what they told me.

It might help if I follow up this point.

The law hasn't changed since 2011 unless I've missed a subsequent amendment.

What has changed recently are DWP's operational practices. DWP used not to impose Work Related Activity requirements on certain groups, including those in the WRAG with an 18 or 24 month period before review. Some in this position believed themselves to be exempt from Work Related Activity, and are surprised to be issued with a binding direction under Regulation 3 to undertake Work Related Activity (often the Work Programme).

[Flymo]

P.S. When I queried this before the following was the info., that Vikstar gave me:
As you are appealing a fit for work decision, and have obtained a fit note from your G.P., you do not have to take part in WFI's/WRA.

I think the letter stating that you may have to take part in WFI's was on the assumption that you might have signed on for JSA.

Even though you will now be classed as having limited capability for work, as dictated by the fit note, you are not in the WRAG, nor are you entitled to main phase ESA or the WRA Component. You will receive assessment rate ESA only.

There is no such exemption in the law, which I've quoted to you already. It is not the receipt of a Work Related Activity Component that makes you potentially subject to mandatory Work Related Activity, but the lack of the Support Component together with a failure to fall into one of various excepted groups I've mentioned.

There are actually two further groups that are exempt from Work Related Activity, which are incorporated by the reference in the law I've already quoted to ESA Regulation 54 (the regulation governing Work Focused Interviews). These are men who have reached the age where a woman would be entitled to her state Retirement Pension, and people who are only entitled to the nil rate of Contributions Based ESA (because they have had 52 weeks of payments other than when in the Support Group).


If you believe you have found something in the law that exempts you, I'll happily take a look, but I go by the regulations, not an old post on a forum that might be based on an obsolete view of the law, DWP operational practice or a mistake.

I'm as certain as I can be that you are not exempt from mandatory Work Related Activity. This makes you potentially subject to sanction if you refused to attend and could not persuade a DWP decision maker that the direction to undertake Work Related Activity was unreasonable for your individual circumstances.

[removed]

Flymo is correct. In the absence of a Support Group award you MUST go to the Work Programme/WFI if directed to by the DWP or you may face a sanction.

[confused.com]

Hello all,

I have had my question answered by the DWP who phoned me this afternoon re a separate matter.

They have confirmed that I do not have to take part in any kind of work related activity until my appeal is heard. I am not in receipt of the work related component of ESA and therefore I am not in the WRAG group. If they want me to take part in work related activity then they would have to re-instate the relevant component of ESA or put me on JSA which they cannot do. That is the law and it has not changed.

Perhaps Vikstar could explain it better. In the meantime I have e-mailed Avanta yet again and informed them of the same.

Kind regards - Lynn

P.S. It would be rather difficult for them to sanction a benefit that I am not in receipt of.

[acheron]

Hi Lynn get it in writing to cover you either way xx