Fri 20-Mar-09 10:00 AM by Tony Bowman

This question is related to this thread at the link below. I started a new one cos the old one is a bit long and this question wasn't answered.

Does anyone have any experience of a client breaking an IS claim and then reclaiming after the 12 week linking period in order to benefit from the new rules?

I'm right on the verge of advising my client that it's safe to do so. We have it in writing from the mortgage section (though they say "we can't give a guarantee") that the new rules will apply and this confirms our own assessment. I've calculated that it will take 20 weeks for my client to show a profit after she reclaims in 12 weeks time. The only stumbling block for client is that she loses £184 a week for 12 weeks, including £68 IS living expenses (but she doubles her ISMI upon reclaiming!).

If anyone has had a go and encountered problems, or hasn't done it but knows of potential pitfalls, please post.

Thanks,


http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=6636&mesg_id=6636&page=

I don't know if this loophole is deliberate. But if it isn't, it has been discussed quite a lot on this website and we all know that DWP does at least sometimes seem to read it. So I would be really worried in case they suddenly thought, "Hey, yeah, that's not what we wanted, let's plug that one." It looks like a bit like deprivation - you know, deliberately disposing of a benefit you are getting in order to increase the amount you get.

Could you post a link to other discussions please Ariadne. I only found ones, like that highlighted where it had been mentioned but not discussed (though I haven't done a thorough search).

I'm not so sure it's necessarily a loophole as such, after all, there are many circumstances where a person can break/change a claim in order to take advantage of more generous provisions (LHA, CA and CP, swapping ESA claimants, etc). Whether or not the question is discussed here, the DWP will eventually get wise to it if they want to. What I find more interesting in the way of ommissions or loopholes in the new rules is that they seem to be so arbitrary in deciding who should get significantly more help than others.

I had very briefly considered deprivation but quickly discounted it as it doesn't apply in this situation since income support is not income for income support. Have I missed something...?

My client is not in a position to break her claim for 12 weeks and as far as I can see she is subject to a 39-week waiting period linking back to an ESA claim. She is a single parent in receipt of higher rate mobility DLA. She was working 16 hours per week but was made redundant and claimed ESA from 28/11/08 (she did not realise she would have been better off on JSA because of the disability premium). Her GP had warned her that she was likely to be found fit for work after 13 weeks.

She was coping with her mortgage payments with the help of her adult sons but they were both made redundant in late December. She started a part-time job 3 days a week and worked, CRUCIALLY, on 3, 4 and 5 Jan 09. There was then some doubt about whether she was actually needed and it was decided that the work could be covered in another way (no fault of hers) and on 19 January she claimed JSA. Did not work after 5 Jan.

The problem is that her claim links back to the ESA claim and because she was in the waiting period for housing costs but only getting cont-based ESA and not in receipt of any benefit on 4 Jan 09 she is stuck with the 39-week waiting period linking back to her Nov 08 claim. If she had worked any other weekend she would have only had to wait 13 weeks.

This is definitely not the intention of the linking rules but it appears that that it what the law says. To add insult to injury the decision date was 2/3/09 but she was told 1-2 weeks before that that she could not appeal, so any appeal would have to be late using wrong info from JC+ as grounds. Also need to show that it has a reasonable chance of success.

She says that she did not intend to claim housing costs with the ESA claim (sons were working) but she was asked if she had a mortgage when she made the claim and the 39-week period has been set as starting from the beginning of the ESA claim. If we can show that the ESA claim was for cont-based ESA only, is there any mileage in claiming that her first claim for housing costs was with the JSA claim of 19 Jan 09, so that the 13-week period should apply? Appear to be caught by Sch 2, 13(6) which says periods on c-based ESA count towards the waiting period.

The problem is likely to be finite but it is still devastating for those affected.

Any ideas apart from MP and social policy?