Contribution based JSA from IB conversion

I have a client who was on CB IB for 17 years and was migrated onto CB based ESA in January.

She failed a medical in July (out of time to appeal - no good cause unfortunately)

ESA stopped and CBJSA claim made.

Client told she does not meet contribution conditions for tax years 2010-2011, 2011-2012 so no JSA as partner works.

My question is this :
Does her contribution record BEFORE her IB claim was made years ago count at all, and as NI paid during IB and (CBESA til July) will this help her satisfy the 2 Contribution criteria??

Thanks, as always.

I agree with Tony- perhaps a bit more detail on the late appeal point will help….

I don’t think she meets the contribution conditions for JSA.

I think the “out of time for appeal” bit needs a rethink:

The test for whether or not to admit a late appeal is ultimately whether it is fair and just to admit the appeal rather than any “good cause” type test.

It is very possible to have an appeal admitted late despite the fact that there are no good reasons for lateness. Indeed the Tribunal Procedure Rules (SI 2008 No. 2685)  read with the late appeal rules contemplate this very possibility-

The structure is as follows when a late appeal is made:

1. The DM considers whether to exercise his/her own power to admit the appeal- this can be done when the criteria in Reg 32(4) to (8) of the D&A Regs (SI 1999 No 991). This consideration involves the following:

a) Is it in the “interests of justice” to admit the appeal?

b) Para (5) makes it clear it can only be in the interests of justice where there is some special reason why the appeal could not be made earlier.

c) Para (6) gives examples of some sorts of things that can be considered special reasons for not appealing earlier but is not a definitive list.

d) Para (7) makes it clear that the later you are the more special your reasons have to be.

e) Para (8) makes it clear that a misunderstanding of the time limits or other issue of law is not a special reason for these purposes.

2. So the above test is similar to the sort of “good cause” idea you suggested is relevant. HOWEVER, this is not the end of the matter.

3. The DM must then just consider whether s/he objects in any event to the appeal being admitted. If s/he does not then the appeal is treated as made in time by the tribunal (rule 23(4) of the Procedure Rules).

4. If the DM does not find special reasons and does object to the appeal being admitted then the tribunal must consider for itself whether to extend time (rule 5(3)(a)). The tribunal’s consideration is simply on the basis whether it is “fair and just” as set out in rule 2. This includes taking into account lots of things that are not just about the reasons for lateness. The factors to consider include (but are not limited to):

a) Dealing with case in way which is proportionate to:

i) importance of the case (it is very important to claimant as no other benefit can get).

ii) complexity of issues

iii) anticipated costs

iv) resources of the parties

b) seeking flexibility in the proceedings

c) ensuring parties able to participate in proceedings

d) avoiding delay.

Important also will be the relative merits of the case. A stronger case at first glance means more likely to be just to admit the case.

5. Really, I think it is almost always the correct position to advise a late appeal provided the long stop period of 13 months has not passed. The FtT usually apply the power to extend time at this stage very liberally. So it is a mistake to concentrate on the reasons for lateness to the exclusion of all else in not advising a late appeal.

You can always use the “notice argument” as grounds for appeal: http://www.cpag.org.uk/content/unnoticed-flaw-esa-conversion-decisions

For the record the ‘reasons for lateness’ provision was removed from the regs just after the turn of the century only to be re-instated some time later, within the new tribunal rules.

Hi all,

I’m not so sure about the JSA contribution conditions not being satisfied. They must be satisfied in the ‘relevant benefit year’ (JS Act 1995, s.2(1)). The definition of that is in s.2(4)(b):

‘(b) “the relevant benefit year” is the benefit year which includes–
(i) the beginning of the jobseeking period which includes the week for which a jobseeker’s allowance is claimed, or
(ii) (if earlier) the beginning of any linked period…’

It is worth looking at s.35 as well:

‘(2) The expressions “limited capability for work”, “linked period”, “relevant education” and “remunerative work” are to be read with paragraphs 2, 3, 14 and 1 of Schedule 1.’

The relevant paragraph in Sch 1 is para 3:

‘Linking periods
3. Regulations may provide–
(a) for jobseeking periods which are separated by not more than a prescribed number of weeks to be treated, for purposes of this Act, as one jobseeking period;
(b) for prescribed periods (“linked periods”) to be linked, for purposes of this Act, to any jobseeking period.’

Then in the JSA Regulations 1996, Reg. 48 defines ‘linked periods’:

‘Linking Periods
48.—(1) For the purposes of the Act, two or more jobseeking periods shall be treated as one jobseeking period where they are separated by a period comprising only–
(a) any period of not more than 12 weeks;
(b) a linked period;
(c) any period of not more than 12 weeks falling between–
(i) any two linked periods; or
(ii) a jobseeking period and a linked period;
(d) a period in respect of which the claimant is summoned for jury service and is required to attend court.
(2) Linked periods for the purposes of the Act are any of the following periods–
...
(b) any period throughout which the claimant is incapable of work, or is treated as incapable of work, in accordance with Part XIIA of the Benefits Act;
(bb) any period throughout which the claimant has, or is treated as having, limited capability for work for the purposes of Part 1 of the Welfare Reform Act;
...
(2A) A period is a linked period for the purposes of section 2(4)(b)(ii) of the Act only where it ends within 12 weeks or less of the commencement of a jobseeking period or of some other linked period.’

Reading from s.2 towards the Regs, I can’t see why the relevant benefit year isn’t the same as for the original IB claim (as long as the JSA claim is made within 12 weeks of the end of the period of LCW). And if the NI conditions were satisfied for IB, shouldn’t they also be satisfied for JSA?

I look forward to the views of greater minds on this…

Jon

PS I think that DMG 20153 agrees with me (not that it is ever easy to tell with the DMG!)

‘Relevant benefit year
21053 The relevant benefit year is the benefit year that includes the beginning of
1. the current JSP or
2. any linked period that ends within twelve weeks of the start of a
2.1 JSP or
2.2 linked period
whichever is earlier.
Note: See DMG 21022 for guidance on calculating the twelve weeks.
1 JS Act 95, s 2(4)(b); 2 JSA Regs, reg 48(2A)’

The practical advice is to appeal the decision refusing cJSA (hopefully still in time).

After all this time, can anyone advise if CB JSA can be paid in a case like this?

Robbo,

The OP never explicitly stated that cJSA was claimed within 12 weeks of ESA ending, so my ramblings may have been irrelevant. One of the problems with being second-tier is that I didn’t get to try this out on any actual human beings to see what happened.

Off the top of my head, I don’t think anything has changed since. I need to look at this bit of law for an enquiry later today, for the first time since September 2012. Gotta love a bit of serendipity…

Jon

Benefit Adviser’s client was converted to cESA in Jan 2012, having been on IB for 17 years. That has his IB starting in 1995 (and let’s assume he wasn’t on Invalidity Benefit (IVB) immediately before his IB started as that just complicates things more).  Way before my time in benefits I’m afraid, but he’d have been in a period of incapacity for work (PIW) from 95 onwards.  Reg 48(2) JSA Regs quoted by Jon provides that a “linked period” for JSA includes a PIW.

However, whilst the start date of a linked period can determine the “relevant benefit year” for the purpose of section 2(4)(b)(ii) JSA Act, it’s still the case that only two or more Jobseeking periods can actually link under Reg 48. 

So when the present client claims JSA in July 2012, a new jobseeking period (defined in Reg 47 JSA Regs) starts.  But where is the earlier Jobseeking period in this example that is capable of linking with the PIW and the 2012 Jobseeking period?  I don’t read the legislation as allowing the July 2012 Jobseeking period to link on its own with the PIW in order to allow the client’s contribution years for the purpose of entitlement to cb-JSA from 2012 to be 1992-93 and 1993-94 (ie, the two complete tax years before benefit year 1995).

If the client was in receipt of unemployment benefit within 8 weeks before receiving IB then the all the days of unemployment benefit in that particular period of interruption of employment (PIE) could themselves constitute a jobseeking period which could then link, via the PIW, to the 2012 Jobseeking period – see Reg 47A(1)(za) JSA Regs, with the result that the relevant benefit year could be a historic one (though by virtue of section 2(4)(b)(i) not (ii)).

If he had been in receipt of IVB, then it’s unclear whether days of incapacity based on IVB could form a linked period at all for the purpose of Reg 48 JSA (IVB was awarded under Part II not Part XIIA of the Benefit Act [SSCBA 92]).  But it may not matter. 

As stated above, Reg 47A(1)(za) would allow only qualifying days of unemployment in any PIE that preceded the PIW to form a jobseeking period.  That means if he was on IVB for the whole of the 8 weeks prior to the start of his IB award in 95 then no earlier days of unemployment in any PIE of which the IVB was part could have formed a Jobseeking period for the purpose of linking.  However, sub paras (a) and (b) of the same reg provide circumstances in which the whole of a PIE (ie, including days of IVB) could represent a jobseeking period for the purpose of later cb-JSA qualification, but the linked period, eg the PIW, or a later jobseeking period would, in those circs, have had to commence on or after 7/10/96, which is not the case here.

Edit: It also doesn’t necessarily follow from the fact that you qualified for IB in 95 using tax years 92-93 and 93-94, that those same tax years, even if they could be successfully linked back to, would guarantee you entitlement to cb-JSA in 2014.  That’s because the contributions conditions for JSA, as with ESA, were tightened in 2010.  In 93-94, for example, earnings for the 1st contribution condition were not capped by the LEL so that you did not have to work 26 weeks in order to satisfy the 1st contribution condition; whereas 26 weeks’ work is the minimum required now.

Have to say though it’s difficult reconciling section 2(4)(b)(ii) with Reg 48.

I can see how Reg 48(2A) could be construed as merely requiring a gap of less than 12 weeks between the start of a new jobseeking period, eg one starting in 2014, and the ending of a linked period.  However, there is no express provision for a linked period to act as one of the ends of a chain of linked/jobseeking periods.  It might just be implicit in section 2(4)(b)(ii) that it can link in the way that you’re suggesting Jon.

Para 3(b) of Sch1 to the Act, as you note, does authorise the making of regs allowing linked periods to link up with jobseeking periods but the resulting reg (reg 48) whilst allowing that type of link up, nevertheless reserves the ultimate end points of the chain for jobseeking periods.

Tom, I think that as Reg 48(2) starts with the words ‘Linked periods for the purposes of the Act…’ rather than ‘For the purposes of this regulation, a linked period…’  there is no requirement for an earlier jobseeking period to link back to. I don’t think that you need to even look at Reg 48(1) unless you are specifically linking different jobseeking periods (for example, calculating the 182 days cJSA entitlement).

It is an odd bit of drafting, but as you say JSAct Sch 1 para 3(b) enables regulations to link prescribed periods to ANY jobseeking period, again separately from para 3(a). So I think the Act and Reg 48(2) are enough by themselves.

You are right that it is not crystal clear from JSAct s2(4)(b)(ii), but the Act, Schedule and Regs all seem to describe two different situations.

Jon

I agree Jon.  As you suggest, Reg 48(2A) appears to be a freestanding linking rule independent of 48(1).  However, whilst “linked period” on the first occasion it appears in (2A) seems to have a specific definition provided by (2A) itself, by the second occasion its definition seems to revert to that provided by 48(2), which is all a bit confusing.

It’s a bit late on a Friday to attempt an answer to Robbo’s query.  I think we’d need to ask the IB claimant whether they were claiming any benefits within 12 weeks of the start of their IB award before we can attempt to identify the contribution years relevant to a new cb-JSA claim, itself made no later than 12 weeks after either the loss of that IB (or converted CESA) or the end of some other linked period.  Not to mention whether their IB was received for an unbroken period and, if not, whether they were in “linked” or “jobseeking” periods during any gaps. 

And then after the contribution years are identified, check whether either of those two years satisfy the tougher 2010 first contribution conditions as highlighted in my last post.