Permitted work / Accrued Holiday Pay.

bubsxo
bubsxo Online Community Member Posts: 34 Contributor
edited February 2023 in Employment and Support Allowance (ESA)
Hello, 

This will be very very long winded as I'm writing everything that happened but any help is greatly appreciated.

I currently claim ESA / PIP and do permitted work which was previously allowed, and have been doing this since April 2022.

I have never gone over my 16 hours per week / 64 hours per month and earn the maximum amount of £152. My employers are very understanding of my situation and always ensure there is never any risk of me going over the limits regarding hours/pay as they know how this could affect my claims.

In December upon receiving my payslip I checked this (as I do monthly due to the anxiousness of it being one penny over!) and noticed a payment on my wage slip for 55 hours holiday, taking my pay from £608 to £1104.20. It turns out this was for accrued holiday, that I was completely oblivious to as I had been out of work for so long! and as I am on a zero hours contract I wasn't aware I was even entitled to holiday. I've since been told by my employers that due to a large staff turnover due to the nature of their company, their holiday year runs from the 1st of January to the 31st of December and that they automatically pay their staff any outstanding holiday at the end of the year.

I received my wage slip on the 13th of December, 2 days before our pay date and rang the DWP then to see how this would affect my claim, including council tax support and housing benefit. Despite my concerns my employers believed this would not affect anything at all, as it is a legal payment they have to make but ensured me they could put a stop to it, if it would affect anything.

After waiting on hold for over an hour and a half I spoke to a guy who was extremely friendly, I explained the situation and he advised me this in fact would not affect my claim at all, as this was clearly 'accrued holiday' and not hours worked, so would not be classed as earnings. I asked him to confirm this several times as I was extremely anxious and he said "you have not worked those hours". He said to get a copy of my wage slip just incase the DWP requested this due to the different amount compared to previous wage slips, and again said as long as it clearly stated annual leave that I would be okay. My employers then obviously went ahead with the payment on the 15th of December.

I received a letter last Friday the 26th that says I contacted them on the 22nd of December (9 days after I actually contacted them) to notify them that I had been paid extra on the 15th of December as I had received payment for untaken holiday. They have stopped my claim from the 15th of December to the 14th of January. The letter states that holiday pay is classed as earnings unless it is paid 4 weeks after employment ends, or when employment is interrupted, and as I am currently still working that I was found to not have limited capability for work during that period because earnings exceed, and that work does not into an exempt category.

Obviously being massively concerned and anxious I contacted the DWP and was again on hold for 2 hours. I explained the situation and what I was advised of previously, and the gentlemen I spoke to said this didn't seem very fair, that all calls are recorded so this would be accessible if required, but that I would need to speak to the decision makers as the decision had already been made, despite seeing details on the system of my call and what was said and me saying I had my payslip here expecting them to request this at some point. I obviously asked how do I go about paying that month of ESA back, totalling over £800, as the letter doesn't mention any of this at all, and also how would it affect my council tax and housing benefit? He said the best thing to do would be to speak to the decision maker and that they would give me a call.

She then rang on Monday and basically reiterated what was written in the letter before I even had a chance to speak. She quite simply just read the letter back as if I had never received it. I asked her why was I given the incorrect information in the first place, as I would of never gone ahead with accepting the holiday pay if the gentleman hadn't told me it was okay, how do I pay this payment back now, why am I expected to pay a whole months worth of ESA back totalling more than my overpayment initially, and what do I do about CT and HB? She said they would write to me detailing how they expect me to pay this back, and if it wasn't financially possible (which it won't be) to give them a ring - again probably expecting me to sit on hold for 2+ hours. She would not listen to the call where I was given the incorrect information, and quite frankly was very unhelpful. She just told me to write a mandatory reconsideration. I also asked why I'd seen on another forum that a lady was paid a whole years worth of accrued holiday in a lump sump, and after explaining this to the DWP her payments were not affected - I can appreciate they can only discuss information on a case by case basis so she couldn't give me any information, but I'm unsure how my situation is any different? She just told me to make a mandatory reconsideration.

Upon reading the letter again, it says if I think this decision is wrong to please get in touch with them by telephone or in writing within one month of the date of the letter. It says I can appeal against this decision, but I cannot appeal until they have looked at the decision again. I'm not sure if they've even done this? I know I have spoken to two people now, but the first said it was above him basically, and I needed to speak to the decision maker to see if she could overturn this decision, and when I did she simply told me the contents of the letter. At no point do I feel like they've actually looked at this decision again?

My employers are quite frankly baffled, as it is a requirement by law to pay me holiday pay, and they don't feel this is only available when employment ends. They have written me a letter to send in to the DWP but I don't know how helpful this would be. I have spoken to housing benefit who want me to email them explaining I plan to appeal this decision, and send them a copy of my payslips and bank statements but I'm still none the wiser to what I'm expected to pay back, or even how.

At this point, if holiday pay IS actually classed as earnings, I'm not expecting to get very far with regards to a mandatory reconsideration. If it is earnings, I will have to make arrangements with DWP / HB to pay this back, and that is fine. But I am querying why I was told the incorrect information in the first place leading me to accept the payment, why they're saying I contacted them 9 days after our original call, basically implying that I got paid this and perhaps spent it, before asking if it was allowed, when in fact I wouldn't of accepted the payment if I was given the CORRECT information, how they can justify that for that month I do not have limited capability for work because of hours I simply did not work, almost as if my health improved for those dates, and how unhelpful the lady was on the phone, not willing to listen or even look at the decision again as stated in the letter is required before I can appeal, and also the lack of information as to how/when I am expected to pay this back. Also I was pretty much unaware that for that entire month my housing benefit wasn't being paid so I am now in arrears obviously with the fear of homelessness.

I'm now extremely anxious that for the sake of a payment of £496.20 I now have to somehow find over £1400 to pay the DWP and HB.

Again I apologise for how long winded this is. Thank you if you made it thus far! If I get a standard response of holiday pay is classed as earnings, you'll have to pay it back, then that's fine, but does anyone have any information as to how to proceed then with being told the incorrect information in the first place, which will be recorded by them, and also how you're supposed to claim any holiday pay if it is indeed classed as earnings and you always do 64 hours? If my employers policy is to pay this at the end of the year by law, then how can they ever pay me this if it will stop my benefits?

Thank you for any information. 


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