UC while waiting for an ESA appeal

Can’t quite work this out so any input would be gratefully recived.

The Claimant is in a UC pilot area. Their ESA has been refused and they have asked for an MR. Do they now have to claim UC rather than JSA and can they go back to ESA once the the appeal has been logged with HMC&TS;?

I think they stay with ‘legacy’ benefits as the MR means they don’t fit the UC gateway.

I have a similar case however the person has claimed UC just after receiving the MR and before sending off an appeal to the HMCTS.

Will they be able to receive ESA while waiting for the tribunal hearing? Should they close the UC claim or will they be migrated?

Thanks,

Andrew.

Hi all,

There was an article about the UC gateway conditions by my colleague Dan in a recent Welfare Rights Bulletin

The universal credit gateway: early experiences

So our ESA client doesn’t fit the gateway conditions as they’re waiting for a decision on an ESA claim, and with the client who claimed UC before lodging an ESA appeal, you need to scroll down to the last section “Practical problems and solutions” which sets out some of the possible permutations and possibilities.

Just an update from my last post; client had claim for Universal Credit pending payment, they paid an advanced payment to the client of £364 and then later the same day terminated his Universal Credit claim from the start and have asked him to provide proof of the ESA appeal with a letter at a Jobcentre asking them to reinstate his ESA claim at the appeal rate…

Paul_Treloar_CPAG - 13 November 2015 09:44 AM

Hi all,

There was an article about the UC gateway conditions by my colleague Dan in a recent Welfare Rights Bulletin

The universal credit gateway: early experiences

So our ESA client doesn’t fit the gateway conditions as they’re waiting for a decision on an ESA claim, and with the client who claimed UC before lodging an ESA appeal, you need to scroll down to the last section “Practical problems and solutions” which sets out some of the possible permutations and possibilities.

The response we received at local stakeholder meeting concerning claimants who claim UC but don’t actually meet the gateway criteria was:

2 choices:

(1) to continue with the UC claim and the claimant commitment will need to reflect the situation (and all claimants will be in UC eventually).

(2) to close the claim for UC and make a claim for [legacy benefit] but this may result in a delay in receiving payments (if you want to stop claiming UC you can close your claim by phoning 0345 600 0723 - textphone 0345 600 0743).

I’m still a bit mistified by how some one can close a UC claim - at least once it has been accepted as a ‘valid claim’ - the lobster pot and all that. Maybe this is DWP’s ‘administrative’ way around the issue?

In regards to my client UC closed his claim when they had confirmation that his appeal had been listed and he wasn’t given the choice to stay on the benefit. He is now receiving ESA pending the appeal however the UC claim is still showing on the system and his ESA payments are being made clerically (manually) every fortnight. HB are now saying they can’t pay due to UC claim ‘being valid’ aka looking on the computer system as if it is valid and we’re having to get them to reconsider this.

Any update on the payment of HB? I have a client who is facing similar problems and would appreciate any tips…

Hi

I have a client with a similar problem and reading through the posts I am little confused as to whether he can terminate his UC claim.

The client failed his ESA medical and requested a reconsideration in November 2015. He made a claim for UC on 9th December 2015 as he was told he couldn’t claim JSA. He has now received the outcome of his reconsideration and is considering appeal.

Am I correct in thinking that if he lodges and appeal and it is accepted we can terminate his UC claim and he receive ESA pending appeal?

Any help would be appreciated.

Thanks

My understanding is you have to be very careful when you are advising on termination of a UC claim, for example termination of a new claim before the end of Monthly Assessment Period will result in no UC being paid, including housing costs and they would not be able to opt to claim housing benefit for the period no UC paid as they were a UC claimant. The situation with housing costs for someone who moves within a MAP is determined by the rent liability at the end of MAP but applied to the full period. Far too complicated!

I don’t see how a person can get HB where they are appealing a UC decision (except in exempt accommodation)?

Exclusion of claims for certain existing benefits

6.—(1) Except as provided in paragraphs (5) to (9) a universal credit claimant may not make a claim for income support, housing benefit or a tax credit.

(2) For the purposes of this regulation, a person is a universal credit claimant if—
(e)a decision has been made that the person is not entitled to universal credit and—
(i)the Secretary of State is considering whether to revise that decision under section 9 of the Social Security Act 1998, whether on an application made for that purpose, or on the Secretary of State’s own initiative; or
(ii)the person has appealed against that decision to the First-tier Tribunal and that appeal or any subsequent appeal to the Upper Tribunal or to a court has not been finally determined.

My understanding of the cases referred to in this thread is that none of the claimants is appealing a UC decision: these are people who have appealed or are on the verge of appealing against refusal of ESA, which can now be paid pending appeal.  This means they don’t have to continue with a UC award that they never wanted in the first place but were forced to accept (rightly or wrongly in view of gateway conditions and pending legacy benefit issues) while they waited for the ESA MR to come through

So having relinquished the unwanted UC and replaced it with assessment-rate ESA pending appeal there should not be any reason why they cannot reclaim HB immediately following the end of UC.  I cannot see anything that would prevent a fresh HB claim in such a case.  The only situations I can think of where an ex-UC claimant in a “live service” area is prevented from claiming legacy benefits over a prolonged period are during the month after a couple split up and during the six months after their earnings first exceed the nil UC threshold

We have our fiirst client in this position. How easy/feasible is it likely to be for him to withdraw the UC claim he had made prior to coming to see us? He had only very recently made the claim and we’ve both advised him to ring the helpline to explain he is challenging the ESA decision (and to point out he should never have made it through the gateway in the first place) and given him a letter to take to local JC when he attends his new claim interview. We wait with bated breath to see what the response is.

If he hasn’t had a payment yet it should be OK - see under Practical problems and solution here - http://www.cpag.org.uk/content/universal-credit-gateway-early-experiences

Excellent- thanks Daphne!

Pernish - 15 February 2016 08:45 PM

Any update on the payment of HB? I have a client who is facing similar problems and would appreciate any tips…

Update;

Birmingham City Council did backdate Housing Benefit for the full period ignoring the Advanced Payment of Universal Credit as income. His appeal was successful on Wednesday and he has been put into the Support Group, narrowly avoiding UC for a while yet. His ESA payments haven’t had any problems after the first couple; but I understand they are still being paid manually.