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ESA Permitted work fluctuating hours calculation
- Bearer
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8 years 10 months ago #162696 by Bearer
ESA Permitted work fluctuating hours calculation was created by Bearer
The claimant receives ibESA and started doing part-time work for a care agency on a zero hours contract in August 2015. This was done with knowledge of the job centre who advised her that she could work 16hrs pw and earn up to 16xNMW. They told her that as the hours fluctuated this would be calculated as an average over a period of time.
In January she was summoned to the Job Centre as "they were told she had received a PPI payout". This turned out to be a ruse as she was interviewed about her work. She duly presented them with her wage slips showing that her worked hours averaged 13 pw in the period up to the end of December. She received a payment for holiday pay for paid holiday not taken. In January and February she had no work at all.
She then received a notice demanding £1,007,30 overpaid for the period 07/11/2015 to 25/12/2015 plus a £50 Civil penalty. An MR was requested and the £50 Civil Penalty was dropped. She has now appealed on the grounds that her permitted earnings fluctuate and the period over which her permitted earnings have been averaged does not not represent her working pattern.
In the absence of any established cycle of working, should the average be taken over a 5 week period, as in section 79 (5) (b) ESA Regs 2013? If so is the 5 weeks a rolling 5 weeks or does it start at the beginning of the employment and run thereafter in 5 week intervals?
Section 79 (5) (b) ESA Regs 2013 goes on to say "five weeks or such other period as may, in the particular case, enable the claimant’s average weekly income to be determined more accurately".
Is anyone aware of any case law that interprets the above averaging of fluctuating work?
In January she was summoned to the Job Centre as "they were told she had received a PPI payout". This turned out to be a ruse as she was interviewed about her work. She duly presented them with her wage slips showing that her worked hours averaged 13 pw in the period up to the end of December. She received a payment for holiday pay for paid holiday not taken. In January and February she had no work at all.
She then received a notice demanding £1,007,30 overpaid for the period 07/11/2015 to 25/12/2015 plus a £50 Civil penalty. An MR was requested and the £50 Civil Penalty was dropped. She has now appealed on the grounds that her permitted earnings fluctuate and the period over which her permitted earnings have been averaged does not not represent her working pattern.
In the absence of any established cycle of working, should the average be taken over a 5 week period, as in section 79 (5) (b) ESA Regs 2013? If so is the 5 weeks a rolling 5 weeks or does it start at the beginning of the employment and run thereafter in 5 week intervals?
Section 79 (5) (b) ESA Regs 2013 goes on to say "five weeks or such other period as may, in the particular case, enable the claimant’s average weekly income to be determined more accurately".
Is anyone aware of any case law that interprets the above averaging of fluctuating work?
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- Gordon
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8 years 10 months ago #162699 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Permitted work fluctuating hours calculation
Bearer
One immediate point, unless the person is claiming ESA as part of a UC claim which given the timescales would be impossible then it is the 2008 Regulations (as amended) that apply. Have a look at Reg 45.
You say that the DWP were aware of the person working, was a PW1 form completed and did it include the details of the work hours and their fluctuation?
If it was then they can argue that the DWP understood the fluctuating hours and had an opportunity to refuse the PW, as a consequence it should be considered an Official Error and the overpayment should not be payable.
If not then their position is very week, the DWP can average earnings but it is something that they must agree in advance, the latest communications would suggest that they would not have agreed to this had they been aware.
I'm afraid I can't comment on the calculation of average earnings.
Gordon
One immediate point, unless the person is claiming ESA as part of a UC claim which given the timescales would be impossible then it is the 2008 Regulations (as amended) that apply. Have a look at Reg 45.
You say that the DWP were aware of the person working, was a PW1 form completed and did it include the details of the work hours and their fluctuation?
If it was then they can argue that the DWP understood the fluctuating hours and had an opportunity to refuse the PW, as a consequence it should be considered an Official Error and the overpayment should not be payable.
If not then their position is very week, the DWP can average earnings but it is something that they must agree in advance, the latest communications would suggest that they would not have agreed to this had they been aware.
I'm afraid I can't comment on the calculation of average earnings.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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