underlying entitlement to ESA and a claim for Universal Credit

I would appreciate any comment on this case.

Around 2011 Client was entitled to both contribution-based ESA and WPA
Because WPA was greater she was paid this (overlapping benefits rule).
In 2011she failed an ESA assessment and appealed.
Her appeal was successfull (11 March 2013). This placed her in the WRA group.
She still received WPA as this was the higher amount
Her entitlement to contribution-based ESA expired in November 2012 (the appeal was in 2013 but against a 2011 decision).
She was no longer entitled to contribution-based ESA but would have been entitled in principle to income-based ESA
An ESA 3 form was not issued.
If it had been issued, she would not have been entitled to income-based ESA. This is because her WPA was still more than her ESA entitlement.
Her WPA ended on 10 April 2016
She was in a full digital area
She claimed UC, using a GP certificate showing that she was not fit for work
As far as I can see, she should either not have claimed UC, but continued her claim for ESA but now with an income-based payment.
Alternatively, she should have claimed UC, but with an immediate entitlement to the limited capability for work element from Day 1.
Alternatively her UC claim should have the WRA component of ESA protected.
As she claimed in 2016, and, assuming she is found to be incapable of work at her medical (which has not yet taken place) she loses out only on the first three months of her claim. However, this is still £370, so it is substantial.
The decision I would be appealing would be the decision on the amount of her entitlement to UC, but on which of the three grounds above should I appeal?

Do others agree with this outline ?  All suggestions welcome.

Thanks a lot Ruth

I am assuming that she received ESA on a ‘credits’ only’ basis after the time limit and that the claim continued as such, i.e. that she continues to have LCW even though no actual payment of ESA?

If the claim was in a full service area, I think she could not claim IRESA – any means-tested claim would be UC. I think she’s stuck with the UC claim.

I think however that Reg 28 (5)(b) and Reg 39 UC Regs mean that she should have LCW right away under the UC rules as she has an existing LCW decision under ESA rules, and should not have to wait for a new WCA.

I think that Reg 41 means that a new WCA is not needed unless there is a change in circumstances.

There may be a valid claim for CESA if she has continued to satisfy the ESA rules and now qualifies for the Support Group ((WRA 2012 section 52) That would be a change of circs to trigger a new WCA.

Thanks for that help Andrew. 

If NI was being credited through Limited Capability for Work then Reg 21 of the UC (Transitional Provisions) Regulations 2014 applies:
http://www.legislation.gov.uk/uksi/2014/1230/regulation/21/made

If NI was being credited then Limited Capability for Work is accepted from start of the UC claim though the claimant can, and probably will, be reassessed

I can’t see any way they could have got income related ESA from the situation you describe. As soon as you tried to reclaim ESA once WPA finished it would have ended the right to get old style ESA

They could still claim new style (conts based) ESA as linking rules are by periods of limited capability for work and not receipt of (or entitlement to) ESA so if LCW has been continuous from the time they stopped working then it is the relevant NI contributions at that time that apply and not the ones in the last couple of years.

Thanks very much I think I’m a bit clearer now on all the implications