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Not getting SSP but not entitled to ESA


kirstyo
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I am hoping someone can give me some advice. My partner has been signed off work since September and has all his sick lines etc from doctor. His boss has point blank refused to pay SSP, has threatened us and has said he doesn't want him back but not given him a p45 or SSP1 form.

 

We are dealing with a lawyer with regards to the refusal to pay SSP and unfair dismissal and the cases are progressing. However we have just been told that he cannot get ESA because he should be getting SSP and we have no way of proving that he is not getting it. His ex employers are not nice people, I don't need to go into the details but they will not give us anything believe me and after spending at least half an hour on the phone to ESA helpline they will not change their decision without either form SSP1 or a letter headed letter from his old employer - neither of which I can get. I don't even have anything to prove when his employment ended. They advised claiming jobseekers which shows how much they know about their own system since you cannot get jobseekers if you are not fit to work. We don't expect him to be fit for work in the near future.

 

Surely there must be something we can do?

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This is a tricky one. My first thought is that the SSP1 form should not be needed since he has effectively been dismissed. An employer can't dismiss someone solely in order to avoid having to pay SSP but that is of course a matter for the Employment Tribunal, not the DWP. Did your partner make his claim for ESA before or after his employer informed him that he was not wanted back?

 

Regarding the failure to issue a P45, I'd suggest your partner get on to HMRC about that ASAP - it's completely unacceptable.

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Its a tricky one because his employer has never told him directly he is fired. I went to collect his SSP after he had text to say I was coming up (I have picked up his wages before so didn't see a problem) without going too much into the whole thing his boss was horrible to me, refused to give any money to me and told me he never wanted to see the other half again. We called the lawyer at that point and he said that we could treat that as a dismissal.

 

He applied for ESA a few weeks later because we honestly thought a lawyers letter would solve the lack of SSP problem. his boss is not from this country and we both honestly thought that he just didn't realise that he had to pay it and once he received a lawyers letter that he would pay but unfortunately not. The lawyer said he is entitled to ESA, everything I have read says he is entitled to ESA but they say legally he is not because he is still within the first 28 weeks of being off sick and should be getting sick pay.

 

I didn't realise that I could contact HMRC about the lack of p45? I will do that tomorrow for sure.

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He would only be entitled to SSP if he were still employed. If you can demonstrate that he's been dismissed then no entitlement to SSP exists and the DWP should not need form SSP1.

 

Of course, the tricky bit is demonstrating the fact that he's been dismissed. A P45 would do, but that brings us back to the problems with his former employer. If his ESA claim is still open, I would be tempted to send a letter (rather than call) to the processing office explaining the situation: that in his view, and his employer's, he is no longer employed. If your lawyer were able to write a note supporting the idea that he has effectively been dismissed then that would help as well.

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The idea that all politicians lie is music to the ears of the most egregious liars.

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Yeah I was thinking of getting the lawyer to write a letter explaining that he is representing my partner in his unfair dismissal and lack of ssp cases and hoping that would be enough to convince them that he is not getting ssp. Apparently because his boss cant legally fire him for being off sick the fact that he is no longer employed doesnt matter to dwp because as far as they are concerned he still should be. Of course it doesn't matter to dwp that that is exactly what has happened. I will contact hmrc tomorrow about the p45 and then the lawyer and see what if anything he might be able to do

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I phoned pretty much everyone I could think of today to try and sort this out and am now so depressed its unreal. We cannot go to an employment tribunal because its £1200 and we simply don't have it, right now I cant afford to do a food shop let alone pay out £1200 to get nothing back. His boss has dissolved his company every year since he started up and restarted a new one, as they are all limited companies the chances of us actually being able to get money out of him is slim to none so it would be a complete waste of £1200.

 

The lawyer is going to try and deal with DWP. I called citizens advice who said they couldn't understand their refusal to pay ESA and that it should be straightforward to get the decision changed if we can demonstrate that he is no longer employed, but that's the problem. HMRC apparently will only ask them to provide a P45, they wont actually do anything if they don't. The only good news is that once they reverse their decision (assuming they will) he should get his money backdated. So now I just need to deal with tax credits.

 

This whole situation is DWP's fault anyway, they were the ones who forced him to take that job in the first place. his mental health has been damaged to the point where he can no longer leave the house because of the way he was treated while he worked there, he has had no sick pay, no holiday pay, nothing the whole time he has worked there. been mentally and physically abused and all through this couldn't leave because he wouldn't be entitled to benefits if he did and I was a student at the time.

 

The worst of it is that I know that they will send someone else and force them to work there now that he is not and that poor person will go through the same thing.

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