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Full time student refused ESA after WCA
- louisemunro
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6 years 4 months ago #202930 by louisemunro
Full time student refused ESA after WCA was created by louisemunro
My son who is 23 and on the autistic spectrum, in September started a full time education/training course arranged by a charity who are a 's.41 special provider'. This provider is named on my son's EHCP. The course involves 4 days a week in a supported work placement and a half day in the classroom. My son receives DLA ( hasn't been asked to transfer to PIP)
A month ago my son attended a WCA. Last week the decision from that said he scored no points and was therefore capable for work and should start to look for a job. He is only one term into a 2 year course!
I had thought that as a full time student my son would be found to have limited capability for work. Is the fact that his course involves him learning in the workplace allowed to be used as evidence he is capable for work? In fact it is a supported programme and this is the reason he can manage.
On what basis should I be asking for mandatory reconsideration? That he is a full time student? Or that he has a limited capability for work and challenge the award of no points?
A month ago my son attended a WCA. Last week the decision from that said he scored no points and was therefore capable for work and should start to look for a job. He is only one term into a 2 year course!
I had thought that as a full time student my son would be found to have limited capability for work. Is the fact that his course involves him learning in the workplace allowed to be used as evidence he is capable for work? In fact it is a supported programme and this is the reason he can manage.
On what basis should I be asking for mandatory reconsideration? That he is a full time student? Or that he has a limited capability for work and challenge the award of no points?
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- Gordon
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6 years 4 months ago #202938 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Full time student refused ESA after WCA
L
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I'm going to recommend that you get face to face advice about this, do an internet search for "welfare advice" with your postcode, town or county. Try and speak to a trained advisor rather than the triage people that many offices have at the front end.
The problem is that there are two conflicting pieces of legislation in play here and I don't have the arguments to make one take precedence over the other, especially as these will have to be done in writing.
On one hand your son has failed the WCA, so the legislation does not require payment of ESA.
On the other hand, the legislation also says that as a full time student with an award of DLA he automatically has Limited Capability for Work which means a WRAG award.
My personal opinion is that the latter overrides the former but you need someone who can articulate this in words that the DWP can understand, which I can't do on the forum.
Gordon
Welcome to the forum, you might want to have a look at the following FAQ which explain where everything is
Welcome to Benefits and Work
In case you are not aware, your real name appears to be showing in the forum, if you want to change this then follow the instructions in the following FAQ
My full name is showing, how can I stop it?
I'm going to recommend that you get face to face advice about this, do an internet search for "welfare advice" with your postcode, town or county. Try and speak to a trained advisor rather than the triage people that many offices have at the front end.
The problem is that there are two conflicting pieces of legislation in play here and I don't have the arguments to make one take precedence over the other, especially as these will have to be done in writing.
On one hand your son has failed the WCA, so the legislation does not require payment of ESA.
On the other hand, the legislation also says that as a full time student with an award of DLA he automatically has Limited Capability for Work which means a WRAG award.
My personal opinion is that the latter overrides the former but you need someone who can articulate this in words that the DWP can understand, which I can't do on the forum.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- louisemunro
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6 years 4 months ago #202949 by louisemunro
Replied by louisemunro on topic Full time student refused ESA after WCA
Thanks for your comments- I will search for an advice service locally.
It seems crazy that on the one hand my LA are paying out for my son to do this course (15k a year) as they recognise he still needs to be in education/training, but on the other hand the DWP say he should be looking for work.
And if he isn't eligible for ESA how is he meant to support himself?
It seems crazy that on the one hand my LA are paying out for my son to do this course (15k a year) as they recognise he still needs to be in education/training, but on the other hand the DWP say he should be looking for work.
And if he isn't eligible for ESA how is he meant to support himself?
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- Gordon
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6 years 4 months ago #202963 by Gordon
I'm afraid at the moment his only option is some sort of part time work as there are no other benefits he can claim at the moment due to his being a full time student.
Gordon
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Replied by Gordon on topic Full time student refused ESA after WCA
lamx wrote: And if he isn't eligible for ESA how is he meant to support himself?
I'm afraid at the moment his only option is some sort of part time work as there are no other benefits he can claim at the moment due to his being a full time student.
Gordon
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- louisemunro
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6 years 4 months ago #202980 by louisemunro
Replied by louisemunro on topic Full time student refused ESA after WCA
Thanks - because of his mental health difficulties my son really wouldn't manage any work at present. If I can't challenge the decision on the basis he is a full time student, I will be appealing the DWP decision not to award him any points, despite the evidence and the observations of the HCP at the WCA.
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