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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

When does LCWRA stop following switch of benefits?

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Tom H
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Newcastle Welfare Rights Service

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Joined: 23 June 2010

HB Anorak - 22 September 2016 08:52 PM

..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.

It’s a good question.  I note that Reg 38 UC Regs itself provides “for the purposes of the Act” although I’m not reading too much into that given the enacting power, section 37 WRA 2012, would determine the scope of the regulation. 

However, Reg 40 UC (Decisions and Appeals) Regs 2013 is obviously going to be relevant to LCW determinations made in respect of new style ESA and how they impact on UC and vice versa.  Subject to the effect of Reg 40, I’d tentatively answer yes to your question, although I’m not fully up to speed with UC yet.

The equivalent to Reg 40 in the 1999 D&A Regs is, of course, Reg 10 and I’d look at that yesterday as a way to potentially overcome any discrepancy between the meaning of LCW in ESA and HB.  Reg 10 provides that a determination that someone has or is treated as having LCW is conclusive for other decisions (without specifying which ones) if such determinations are embodied in or necessary to a decision made under the SSA 98 or if the latter decision is based on such a determination.  The decision to award LCW credits, made under section 8(1)(c) SSA 98, is in a sense “based” on a LCW determination proper as the credits DM has to apply the same LCW assessment in order to decide whether the person would have had LCW had they been entitled to ESA.  It’s possible, therefore, that via Reg 10 D&A a person might actually “have” LCW for, say, para 21(1)(a) of Sch 3 to HB Regs despite not being entitled to ESA.  A bit tortuous though.  And it doesn’t get round the problem that credits are only awarded yearly in arrears whereas para 21 obviously envisages the ESA component being awarded at anytime.

And just to clarify, the intention was obviously to award ESA components in HB without the person being entitled to ESA and also not to deny HB to disabled students just because they don’t qualify for ESA (the memo you found clearly revealing the latter), so I’m sure a purposive interpretation could rescue things should I be right on the technical point about LCW.