When does LCWRA stop following switch of benefits?

I have a client who was in the support group of ESA

She gets PIP and partner claims CA

For one reason or another they were persuaded to claim income support, rather than esa, so ESA claim closed in January and IS claimed.

They have closed their IS claim last month and reclaimed ESA, but they have been placed in the assessment phase, but they were verbally told when switching from IS back to ESA that she would still be classed as having LCWRA and therefore SG component would be paid.

Now that the claim is up and running the DWP now say she needs a medical before LCWRA can be established, so money wont increase until then

Is this correct procedure?

Thanks

I don’t think so. As partner was the IS claimant they have erroneously stopped your client’s NI Credits ; they should have continued.  Once you get the credits sorted that will evidence a continued period of Limited Capability for Work and you’ll be able to show that she remained LCWRA.

I think…

I think the DWP are right.

The gap between the previous and present awards of ESA is more than 12 weeks.  Client, therefore, correctly goes into assessment phase re the new award. 

The potentially unlimited linking rule to which Dan alludes concerns the re-instatement of previously time-limited contributory ESA.  The client’s ESA doesn’t appear to have been contributory, otherwise the partner’s IS claim wouldn’t have ended it.  And even if it was (eg, client erroneously thought she had to end any contributory ESA as well as her income-related ESA in order for partner to claim IS), the ESA would have been voluntarily brought to an end rather than time-limited.

Time to hit the books… This is valuable as we were discussing this in a meeting not long back so I need to clarify it.

Credits for incapacity for work 4or limited capability for work
8B.—(1) 5 For the purposes of entitlement to any benefit by virtue of a person’s
earnings or contributions, he shall be entitled to be credited with earnings equal to the
lower earnings limit then in force, in respect of each week to which this regulation
applies.
(2) Subject to paragraphs 3(2A), (3) and (4) this regulation applies to–
a week in which…

(iv) was a day of limited capability for work for the purposes of Part 1 of the
Welfare Reform Act (limited capability for work) or would have been
such a day had the person concerned been entitled to an employment
and support allowance by virtue of section 1(2)(a) of the Welfare Reform
Act; or
(v) would have been a day of limited capability for work for the purposes of
Part 1 of the Welfare Reform Act (limited capability for work) had that
person claimed an employment and support allowance or maternity
allowance within the prescribed time;
7(iva) would have been a day of limited capability for work for the purposes of
Part 1 of the Welfare Reform Act (limited capability for work) where the
person concerned would have been entitled to an employment and support
allowance but for the application of section 1A of that Act; or

(aa) 1
2(b) a week for any part of which an unemployability supplement or allowance
was payable by virtue of–
(i) Schedule 7 to the Contributions and Benefits Act;4(2A) This regulation shall not apply to a week where–
3(ii) Article 12 of the Naval, Military and Air Forces Etc. (Disablement and
Death) Service Pensions Order 2006(a);
(iii) Article 18 of the Personal Injuries (Civilians) Scheme 1983(b).

(a) under paragraph (2)(a)(i) the person concerned was not entitled to incapacity
benefit, severe disablement allowance or maternity allowance;
(b) paragraph (2)(a)(ii) (relate to incapacity for work, (iva) or (v) (iva & v are time limiting of cesa) apply; or
(c) under paragraph (2)(a)(iv) the person concerned was not entitled to an
employment and support allowance by virtue of section 1(2)(a) of the Welfare
Reform Act,
and the person concerned was entitled to universal credit for any part of that
week.

On my reading of that the Credits link back to the period of LCW rather than the ESA claim. Does the IS claim kill the period of LCW?

Ohh look; I’ve got my formatting back!

Edit; period of limited capability for work is defined by S24 WRA 2007 as “ha[ving] the meaning prescribed for the purposes of this Part” so reg 2 ESA gives us

“period of limited capability for work” means 3except in paragraph (5), a period
throughout which a person has, or is treated as having, limited capability for
work, and does not include a period which is outside the prescribed time for
claiming as specified in regulation 19 of the Social Security (Claims and Payments)
Regulations

So on my reading the Credits link back to the period of LCW rather than the ESA claim be it contributory or otherwise… A claim for IS shouldn’t kill the credits “claim”.

However… I was thinking the assessment phase links back to entitlement but reg 4 ends the assessment phase when LCW is determined; presumably where there remains a period of LCW the previous determination stands.

The issue in the OP is whether someone can escape entering a new assessment phase where their new period of Limited Capability for work (pLCW) commences more than 12 weeks after their old pLCW ended.  And the answer is no. 

I wouldn’t be surprised, however, if the Dept relent if the client keeps at it.  That’s not because the law is on the client’s side, but because the DWP appear nowadays to be awarding or refusing benefit on the basis of what is administratively convenient rather than legally right.

The client’s ESA ended in Jan 2016.  We’ll assume she’s been on ESA since 6/4/15, ie start of tax year 2015/16.  The law, ie Reg 8B which you highlight above, says that if she wants to be awarded credits for 2015/16 then she has to furnish the Dept with written notice including the grounds on which she qualifies for credits - Reg 8B(4).  The dept, in effect, treat the fact she’s claimed and been awarded ESA as the furnishing of such notice.  They also appear to continue to award credits if the ESA award subsequently stops provided the client hasn’t failed the WCA or been treated as not having LCW for some other reason.  So in the present case it seems the Dept would have awarded her sufficient credits to allow 2015/16 to count.  That said, I’d advise the client here to check that that is in fact the case.  We take on trust that the Dept does continue to award credits in these circs.  It also seems that she would eventually be awarded credits for 2016/17 under the same DWP practice irrespective of whether she’d reclaimed ESA in that tax year.  What matters, it seems, is whether you fail a WCA etc.  So even if her partner had continued to claim IS instead of her re-claiming ESA, she would eventually have been credited for 2016/17 as well.

Reg 5 ESA Regs 2008 allows time spent in the assessment phase under an old ESA award to count, in certain conditions, towards the duration of the assessment phase under a new award.  But only where the pLCWs link, ie there is less than 12 weeks between the ending of the old one and start of the new one.  And pLCWs only apply, by definition (Reg 2 ESA Regs) to periods when a person “has” or is “treated as having” LCW.  In the present case, the client is awarded credits for the period in between her old ESA ending and new ESA starting on the basis that each day “would have been” a day of LCW had she claimed ESA.  And would’ve/should’ve/could’ve isn’t did.  Consequently, her new pLCW only starts once she re-claims ESA later in the year.  And by then, it’s been more than 12 weeks since her old pLCW ended in Jan 2016.  So Reg 5 doesn’t apply. 

Who recommended the switch to ESA , if DWP / JC+ then clearly misadvised and could pursue compensation for any monies lost.

Tom H - 16 September 2016 01:55 PM

The issue in the OP is whether someone can escape entering a new assessment phase where their new period of Limited Capability for work (pLCW) commences more than 12 weeks after their old pLCW ended.  And the answer is no. 

What extinguishes the first pLCW?

The ending of the ESA award ends the pLCW.  You need to “have” or be “treated as having” LCW in order to be in a pLCW - definition Reg 2 ESA Regs.  The basis of credits in the present case is, in effect, that she “would have had” LCW or “would have been treated as having” LCW had she claimed ESA, which is not the same thing.  Surprised that you’re even querying that.

Tom H - 21 September 2016 05:12 PM

The ending of the ESA award ends the pLCW.  You need to “have” or be “treated as having” LCW in order to be in a pLCW - definition Reg 2 ESA Regs.  The basis of credits in the present case is, in effect, that she “would have had” LCW or “would have been treated as having” LCW had she claimed ESA, which is not the same thing.  Surprised that you’re even querying that.

That presupposes that LCW or deemed LCW is contingent on receipt of ESA. I can’t see that. LCW is a freestanding status on my reading.

I think that’s the crux of our difference…

Similar debate here as well:

http://www.rightsnet.org.uk/forums/viewthread/9249/

I think it can be distilled down to this:

- Tom’s view is that the reference to a person who “would have” had LCW if they were on ESA in a “credits only” case implies that it is only possible to have LCW if actually entitled to ESA or UC
- Whereas others would say that it doesn’t actually say in black and white anywhere that you can only have LCW if you are on ESA or UC, therefore it is possible for it to exist as a freestanding status

I think we need to see -in black and white- provision for termination of a pLCW. I haven’t seen one so I’m pretty sure it continues.

Tom; you also miss “was” from “would have had” or “Would be treated as having” LCW in the credits regs. My aftbrain thinks that’s relevant but I’m also trying to sort through someone’s psychotic appeal submssions so I’m just throwing it out there.

Anorak, there is no way to reconcile the parts of the HB Regs discussed in the thread to which you link with the accepted meaning of a pLCW in ESA.  If anything, it shows that those responsible for drafting the HB provisions concerned just didn’t understand the concept of LCW and the law governing entitlement to credits.  In the memo which you kindly dug out of the Archives, para 100 laughably in my view equates “treated as having” LCW with credits-only cases when, as I mentioned in the thread concerned, “having” and being “treated as having” LCW are concepts which have a particular meaning in ESA legislation.  In particular, both terms are derived from section 8 WRA 2007 which itself is made only for the purposes of Part 1 WRA.  And part 1 exclusively concerns entitlement to ESA proper not credits.  The only way to reconcile HB Reg 56(ea) with the policy intent as revealed by the memo is to treat “have” and “treated as having” as they appear in (ea) as including a reference to “would have had” and “would have been treated as having” LCW. 

Dan, LCW, as we all know, is effected by section 8 WRA 2007 which is explicitly made for the purpose of part 1 WRA (see the opening words of section 8).  As stated above, part 1 concerns ESA proper only (see section 1(1) WRA 2007).  That is as black and white as you can get. 

The earliest credits can be awarded is the end of the tax year in which you wish to be credited earnings.  See Reg 3 Credits Regs 1975 (and related commentary on the concept of a “reckonable year”).  In the present case, if you were right about a credits award extending the pLCW, how would benefits adviser’s client know at the point that she re-claims ESA in, say, Sept 2016, whether she is on credits or not.  She would only know at the end of tax year 2016/17.  So are you saying the Dept would award main phase ESA from day 1 (ie, escaping the assessment phase) purely on trust that she’ll eventually be awarded credits when the credits DM sits down on 6/4/17 and looks at her credits entitlement.  What if the latter finds that she’s not entitled to credits because she went back to work in Jan 2017 and earned enough between then and 5/4/17 so as not to qualify for credits at all.  Are they then going to revise her Sept award of ESA. 

In determining which contribution years are relevant to the “relevant benefit year” for the purposing of deciding entitlement to CESA under schedule 1 to the WRA 2007, entitlement to credits has rightly never been considered relevant to whether pLCWs link.  What you’re suggesting would fundamentally alter the basis upon which cESA and IB have, between them, been awarded for decades. 

Edit:  Edited to change a couple of dates which incorrectly showed 2016 instead of 2017.

Tom H - 22 September 2016 12:32 PM

. 

The earliest credits can be awarded is the end of the tax year in which you wish to be credited earnings.  See Reg 3 Credits Regs 1975 (and related commentary on the concept of a “reckonable year”).  In the present case, if you were right about a credits award extending the pLCW, how would benefits adviser’s client know at the point that she re-claims ESA in, say, Sept 2016, whether she is on credits or not.  She would only know at the end of tax year 2016/17.  So are you saying the Dept would award main phase ESA from day 1 (ie, escaping the assessment phase) purely on trust that she’ll eventually be awarded credits when the credits DM sits down on 7/4/16 and looks at her credits entitlement.  What if the latter finds that she’s not entitled to credits because she went back to work in Jan 2017 and earned enough between then and 6/4/16 so as not to qualify for credits at all.  Are they then going to revise her Sept award of ESA. 

 

This is the whole business about leaving a credits claim open. It’s an administrative construct that’s of no worth when viewed from a statutory perspective but we all know that it happens and a “credits claim” is a real thing; it has been since time immemorial; or at least since the inception of IB.

As to S1(1) a pLCW might be a creation of the ESA scheme but there is no provision that a pLCW will die with an ESA claim, in fact, considering the fact that credits can be awarded where a person was in a pLCW then there is nothing in your comment above that precludes the pLCW continuing beyond an ESA claim.

So that on the table, I think we will have to agree to differ.

Good discussion all the same Dan (as was the linked thread, Anorak).  Agree that DWP have a shaky grasp of credits.  The number of times a DWP staffer has said to me “ah, yes but I see he’s on credits” when it’s only half way through the tax year.  But it’s a slippery slope once you start accepting the DWP incompetence as the reality.  Eg, I’ve seen it suggested elsewhere by advisers that you can somehow supersede a credits award to turn it into an award of ESA. 

For what it’s worth I think I’ve located the source of what I think is the poor drafting when it comes to LCW, eg in HB.  It’s the fact that under the old regime the issue of IB entitlement and the question of incapacity for work were dealt with under separate parts of the SSCBA 92 (Parts 2 and 12A respectively).  Crucially, section 171A which fell under Part 12A made clear that the concept of incapacity for work applied for the purpose of the entire Act, ie not just for the purpose of IB under Part 2.  That structure allowed the determination re incapacity for work to be, in effect, freestanding.  Even the Regs which contained the personal capability assessment were the “Incapacity for work (General) Regs” rather than the IB Regs as if to emphasise the freestanding point.  Consequently, and as we know, IS could be awarded if you were incapable of work, entirely independent of IB, as could a disability premium in IS or HB. 

Along comes ESA but unlike section 171A above, section 8 WRA 2007 is exclusively made for the purpose of Part 1 of that act.  The effect is, it seems, not to make the test of limited capability for work a freestanding one.  But the draftsman doesn’t seem to have realised this elsewhere.  For instance, one of the scenarios in which you can qualify for an ESA component in HB is if you satisfy para 21(1)(a), (b)(i) and (c)(iii) of Sch 3 to the HB Regs.  That scenario suggests you can “have” LCW despite not being entitled to ESA.  But, as stated above, section 8 WRA envisages “having” LCW purely in the context of being entitled to ESA.  As already mentioned that was the problem I had with Reg 56(ea) HB Regs also.

Finally, sorry I didn’t respond to your point Dan about the use of “was” in Reg 8B, ie “was a day of LCW”.  I just think the past tense there is emphasising the fact that credits are always awarded retrospectively, looking back at the tax year gone by, despite the DWP computers suggesting otherwise.  Prepared to accept I could be completely wrong about all this as well.

Really interesting stuff Tom, thanks for this analysis.

There is another route to LCW (and LCWRA for that matter) now because these terms are used in UC.  But picking up on your analysis of the 2007 Act, I see that s37 of the 2012 Act defines LCW and LCWRA only for the purposes of Part 1, i.e. UC - so as with ESA I guess you would argue that as a matter of law LCW has no function or legal standing outwith a live UC claim or award.