UC claim in place…options to revert to legacy benefit

Hi

Just a call for opinions on following set of circs…....

Client is in Merseyside pathfinder area

Client presented to me in Feb this year…...he was having difficulties with his UC payments at that time….we clarified with UC that the reason for sporadic/fluctuating payments were because he had been moved from IRESA(within UC) to CESA outside of UC…..but the UC claim remained active for his Housing Element payment and CESA began to be paid separately…......(UC had looked at the claim without client knowledge and amended because of Contributory entitlement).

He came out of work in August 2014 because of poor health but made a claim for JSA…..the claim was through UC…..approx. 3 weeks later he swapped to ESA….also within UC…...the JSA claim should also have been Contributory but hey ho.

He contacted me recently to say that he had been awarded PIP standard daily living…..this would have opened up the SDP option on legacy benefits….but closed off with UC….

Can we look to swap him back to legacy benefits to take advantage of the SDP…...(his prospects for ESA SG are I feel limited)...

Views taken from other advisors differ….....but recent discussion on CPAG course suggests that it may be possible, because he is in a pathfinder area, to stop UC and submit new claim, because he no longer meets gateway conditions…..he is sick…..DWP would not be able to accept the claim as UC….income related top up for SDP and separate HB claim could then follow.

Apologies if above seems long winded…..not wanting to create in depth discussion on regs etc….just inviting views on prospects for taking this route (if client up for it) and to see if others have come across similar scenarios and any outcomes.

Cheers

Andy F
RS

apf - 30 June 2015 01:03 PM

He came out of work in August 2014 because of poor health but made a claim for JSA…..the claim was through UC…..approx. 3 weeks later he swapped to ESA….also within UC…...the JSA claim should also have been Contributory but hey ho.

This is somewhat confusing.

Are you saying that he has a current CESA award but topped up by Universal Credit?

hi Gareth

yes his ESA (unfit for work) was included with his UC….

UC then stopped his UC ESA ..(limited capability for work/unfit for work element and DWP paid it separately like a legacy benefit would normally be but UC continued paying his Housing Element..

Hope that makes it a bit clearer

Andy

For the avoidance of doubt, he has a Universal Credit award and CESA is taken into account as income?  Does his UC award include the LCW element?

Was his original UC claim within the gateway conditions; healthy etc?  He then started work and stopped for health reasons?

hi Gareth

he is currently on assess phase for CESA….UC only pay Housing element…

He was long term employed….stopped because of health issues…UC claim as a Jobseeker initially paid…this changed when he claimed as unfit for work….....UC was paid as if it was a full means tested award….around January….UC/DWP decided that he met contributory conditions….swapped him to CESA paid by DWP…UC then reduced to Housing Element only….....he still receives Housing Element only through UC….....he gets CESA separately from DWP at assess phase currently

CESA is taken in to account as income

Gateway conditions met at start of claim….but should really have been a CBJSA CLAIM.
cheers

andy

It will help if you try to stop thinking about UC as having separate bits within it.  He is getting UC, which must include an Adult’s Standard Allowance and housing costs as part of the overall needs figure; in this case.  He has income taken into account which includes CESA.

Where it seems to be getting messy is that he is, and I’m guessing here, in danger of having what are theoretically two different assessments.

a) CESA LCW / LCWRA
b) UC LCW / LCWRA

Part 5 of the UC regs lays down whether LCW or LCWRA applies.
Regulation 39 says that LCW applies where a determination has been made under the Universal Credit regulations OR under the ESA regulations.
Regulation 40 does the same for LCWRA.

Regulation 41 gives the Secretary of State the power to carry out a Work Capability Assessment, under the Universal Credit regulations:

“... where–
(a) it falls to be determined for the first time whether a claimant has limited capability for work or for work and work-related activity”

or

“(b) there has been a previous determination and the Secretary of State wishes to determine whether there has been a relevant change of circumstances in
relation to the claimant’s physical or mental condition or whether that determination was made in ignorance of, or was based on a mistake as to, some material fact,”

If there has not yet been a determination made under the ESA regulations then, as I read this, there should be a Universal Credit WCA.

It would be interesting to see what would happen if there were separate UC and ESA determinations, and they didn’t agree.

Whilst UC does seek to structurally combine various ways of defining people, those basic legacy definitions persist… Jobseeker… Sick… Carer etc. In that sense the regime that UC brings is at the same time familiar and cosmetic, albeit with a new list of complications. Subject to TP, disappearing UC support for adult disability would appear to be subsidising worker gains. Again, that shift can only be understood through the prism of the current system.

The mechanisms to define sickness are of course relevant (and maybe more relevant than I grasp), but I suspect that at the heart of this query is the potential to enter Pathfinder, then experience a change that would otherwise negate Pathfinder entry, then withdraw from UC, and then connect or re-connect to legacy premium advantages that relate to disability. This potential has been theoretically raised before, but this would appear to be a real case! Should Andy recommend this approach to the client?

Steve, while there may be some categorisations of people as UC claimants that can be useful, what isn’t useful, I’d argue strongly, is trying to separate bits of the UC payable as attributable to particular client circumstances.

As far as withdrawing from UC goes, most of the discussion seems to have been around cases where people were placed on UC who didn’t meet the gateway conditions when claiming and should not have been placed on UC. In this case it seems that those conditions were met. While going back to the DWP and saying, effectively, “this person will be better off under the old system, so please let him go” might work, it does seem to be somewhat at odds with their intentions.

Hi Gareth. I did not intend to suggest an approach that splits UC not bits etc - I was simply suggesting a way of understanding where the components come from etc - sorry if I distracted us.

Going back to the main issue of the query, what Andy is I think seeking to do is find a way of re-connecting his client to legacy disability premiums, due to pending entitlement to PIP.

It would not of course be on the basis of asking the DWP to let the claimant back into legacy because they would be better off (!). I agree that this kind of choice is not intended. Rather, the issues are (i) Can you withdraw a claim for UC? I think discussions elsewhere on Rightsnet have suggested yes. (ii) If at that point the claimant’s circumstances have changed such that they would now be rejected by the Pathfinder filter on a new application (in this case due to sickness), are then legacy benefits available? These are the issues I would particularly value your opinion on. I think Andy will need some confidence this would work, otherwise the claimant might end up worse off what with all the delays/possible gaps in claims etc. of going down this road. What do you reckon?

What I’m very unsure about - and this has been discussed in other UC threads - is the relationship between UC gateway conditions and potential entitlement to either contributory JSA or ESA, and what is communicated about this to claimant at the time of new claim.

1) if this particular claimant did have entitlement to C-JSA at time of his new claim, should that have excluded him from gateway conditions?  and meant that he would have been entitled to claim HB for rent?  If he has entitlement to a legacy benefit (but not actually claimed it yet) is he excluded from gateway?

2) or is what’s important the fact that he did claim UC (presumably on JCP advice) regardless of whether the gateway conditions were correctly applied?

I’ve tried to work out the rules around ‘new’ ESA and JSA (applying in UC areas) but I’m not sure if they’re much help

stevejohnsontrainer - 01 July 2015 10:38 AM

Can you withdraw a claim for UC? I think discussions elsewhere on Rightsnet have suggested yes.

I think the discussions suggested “Er, Hmm, Wha…?” .  See http://www.rightsnet.org.uk/forums/viewthread/7434/

... BUT ... See also the FOI response to this question, from the splendidly persistent Glenys Harriman, at https://www.whatdotheyknow.com/request/withdrawal_of_universal_credit_c

Following that request all the way through provides the following end point (My emphases) .

“1. Please state which actual section of the relevant regulation is the one which states whether or not a claimant can withdraw a claim for UC once it has been put into payment; and if they can, how this is done.”

No provision in the Universal Credit Regulations or Commencement Orders explicitly permits or prohibits the relinquishment of a Universal Credit award. In the absence of such a prohibition, a person receiving Universal Credit who wished to end their award could contact this Department in the usual way when they have a question concerning their award. Once this Department has received the claimant’s notification that they wish to relinquish their award, the necessary work would be taken to end it.

2. Please also state which actual section of the relevant regulation states whether or not such a claimant would be able to put in a claim for Income Related Employment & Support Allowance the following week (or later); or
whether this would be treated as a claim for UC .”The phased introduction of Universal Credit means that the legislation that provides for any given person to claim Universal Credit (and ‘new style’ contributory Jobseeker’s Allowance or Employment and Support Allowance) depends on where they live.

For example, the relevant legislation for a person living in a postcode where Universal Credit originally launched in Ashton under Lyne would be covered by The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013 (SI 2013/983).

For relevant claimants living in an Ashton-under-Lyne postcode, the primary provisions are contained in Article 3 of that Order for the introduction of Universal Credit, and in Article 4 for the abolition of ‘old style’ Employment
and Support Allowance, but other Articles will be relevant depending on the claimant’s circumstances.

If a claimant lives elsewhere, in a postcode covered by a subsequent Commencement Order (all of which are listed at https://www.gov.uk/government/policies/simplifying-the-welfare-system-andmaking-sure-work-pays/supporting-pages/welfare-reform-act-2012-regulations), then equivalent provision is contained in that Commencement Order.

Whether a person living in a Universal Credit Live Service postcode would claim Universal Credit or ‘old style’ income-related Employment and Support Allowance depends on their meeting the Gateway Conditions contained in
Schedule 5 of SI 2013/983 as inserted by SI 2014/1452. Paragraph 2 of Schedule 5 includes conditions that the person is fit for work. Thus a person who is not fit for work, lives in a Live Service postcode and has no current
Universal Credit award would claim income-related Employment and Support Allowance rather than Universal Credit.

No fitness for work restrictions apply to prevent someone claiming Universal Credit who lives in a Digital Service area, as defined in two further Commencement Orders (SI 2015/33 and 2015/634). Subject to satisfying a
single Specified Condition concerning British citizenship and UK residence (until 10 June, when this condition will be revoked), people in a Digital Service postcode would claim Universal Credit and/or new style, contributory-only
Employment and Support Allowance. “

From that response it seems as if the Lobster Pot just doesn’t exist in any formal way.  Anyone living outside Sutton or Croydon could stop their claim and claim IR-ESA immediately.

Thanks for the compliment Gareth!
There’s a lot to consider before advising someone to withdraw their UC claim- timing is crucial for a start because of the monthly assessment periods- so we have written a briefing paper. If anyone wants a copy please message me.

thanks to all for all the input…...

so looks like it is one to try…but who knows for sure i guess what DWP will say

will discuss with client how he wishes to proceed…....if he wants to attempt…will post update on the outcome…..

thanks

andy

On a similar note, I have a client who is currently on IS (carer) who is looking at the possibility of moving her partner (on UC) into her home. If UC was up and running as intended, the obvious answer would be for her to be included in a couple claim. However, what worries me is that she will not meet the current gateway conditions, so such a claim would not be accepted. What scope is there for him to close his UC claim and make a couple claim for JSA in his name?

I have heard horror stories of claimants in this situation being refused legacy benefits because of their existing UC claim, while UC refuse to pay due to claimants not meeting gateway conditions.