Linking period on ESA LCW to UC when assessment not carried prior to UC CLaim

There’s provision in the UC Transitional Regs for, in effect, linking LCW/LCWRA status on ESA or credits with LCW/LCWRA status on UC. 

I have a customer who was in receipt of ESA PIP & SDP had completed a ESA50 and was awaiting assessment.

During this period he was given a property required HB so had to do UC claim as we in full service area.

He has already lost his SDP under UC and is currently still not been assessed re LCW

My question is, as he made a new claim due to a change of circumstance will the transitional regs apply.

He potentially will lose the WRA or SG premium he would have been entitled to on week 13 of his ESA claim and then need to wait again for UC to assess and wait again another 13 weeks.

My feeling is this should link and we could possibly get the owed premiums for the closed esa claim and then link the period to the new UC but not if the transitional regs don’t apply.

Any thoughts ?

My understanding is that once it’s established by one or more of the various WRA 2012 Commencement Orders that a claimant can transition from legacy benefits to UC, then the UC Trans Regs deal with the effects of that transition (see para 4.4 of the Explanatory Memo to the 2014 UC Trans Regs).  The UC (Digital Service) Amendment Regs whilst making an amendment to the UC Trans Regs that’s unrelated to your query, don’t as far as I can see otherwise prevent the Trans Regs applying in your client’s case, ie from ir-ESA to digital service UC.

Reg 20 of the UC Trans Regs would, therefore, appear to apply.  Which particular paras of Reg 20 apply depends on whether, at the relevant date (defined in 20(1)(a) as the date his UC claim is made or treated as made), he’s been in the ESA assessment phase less or more than 13 weeks.  In either case, Reg 20 doesn’t waive the need for him to be assessed for LCW/LCWRA under Part 5 of the UC Regs.  What it does do is backdate the LCW or LCWRA element should he eventually pass the Part 5 assessment, either to the start of the first UC assessment period where he was previously in the ESA assessment phase more than 13 wks, or to the start of the UC assessment period immediately following the date on which his time on ESA and UC combined is 13 weeks.

The upshot is that he doesn’t lose out if he has only been in the ESA assessment phase for less than 13 wks.  But, Reg 20 implies that he does lose out if his wait in the ESA assessment phase was more than 13 wks.  He’d lose out on a component for the following period: assessment phase wk14 - his UC relevant date.  It sounds like your client is in this situation at present. 

I think he has a right to a WCA under the ESA legislation.  That’s because R(IB)8/04 holds that the phrase “where it falls to be determined” refers to the need to make a determination in respect of each day of claimed incapacity (para 8.2).  That case was in respect of IB which was a daily benefit but ESA uses the same phrase in the context of LCW so the judgment is strong authority for saying that a determination of LCW needs to be made in respect of each week (ESA as we know is a weekly benefit) of claimed LCW.  The DWP are unlikely to accept that and just withdraw any referral for a WCA once his ESA award ends upon transfer to UC.  But they still have to issue a written decision terminating the ESA award which you could appeal and ask a tribunal to conduct the WCA which the DM refuses to do. 

Should he pass the WCA under the ESA Regs then a UC DM could just accept that result for UC without further assessing him under Part 5.  That’s because Reg 19 UC Trans Regs would then apply rather than Reg 20 above.  And Reg 19(6) in particular provides that a ESA WCA determination that is made after the ESA award has terminated can still be taken into account for the purpose of treating the person as having LCW/LCWRA from day one of the UC award.  It’s just getting the ESA DM or tribunal to do that WCA.

Thank you Tom

I appreciate your response.

As I thought ESA will terminate his claim upon his UC claim with no interest that he has been waiting for assessment post week 14 and potentially lost a component,  UC making him complete another ESA/UC50 with another assessment period.

It is so frustrating for our customers, he is in lose lose situation through no fault of his own coupled with loss of SDP. Nightmare.

I will pursue the ESA route of getting him assessed seems silly it will need two assessments as this will not be a quick fix

If he passes the WCA would he not be able to ask for an anytime revision of his ESA to get the appropriate component paid from week 14 up until the end of the ESA claim (in the same way that he would if the claim hadn’t ended)? So he would at least get the appropriate component paid throughout though obviously still stitched up in respect to sdp etc.

I think the main issue is getting the DM to accept that a WCA should take place re the ESA.  By appealing the decision terminating ESA upon transfer to UC, you’ve at least safeguarded your position.  I’m not suggesting an ESA DM wouldn’t in practice be prepared to revise Daphne in those circs and something, therefore, that would definitely be worth pursuing, but in theory the DWP could have a legal defence to the effect that a revision of the ESA would require an assessment under the ESA Regs rather than one under Part 5 of the UC Regs, despite its obviously being an identical assessment.  Nothing stopping you doing both, of course, ie appealing the termination of ESA and, should, your WCA under the UC regime take place before you get to ESA tribunal, then ask for the ESA to be revised.  If it was then revised, your ESA appeal could happily lapse.  What anytime revision ground did you have in mind?

sorry - i meant supersession on the basis that have passed WCA

I think the other issue that would need to be addressed is the fact that at the date of decision under appeal, ie the date the ESA was terminated upon transfer to UC, the DWP are very unlikely to have received any medical evidence from a HCP, eg an ESA85 report.  As stated earlier, if a referral to Maximus for a medical had been made it is very likely to be withdraw by the DWP once the ESA award has been terminated in these circs. 

That presents any tribunal standing in the DM’s shoes at the date of decision with the problem of deciding when a component should be payable from should it decide that the appellant does indeed pass the WCA.  Either from wk14 or from the date of decision under appeal.  As we know, the component is normally backdated to wk14 under Regs 6(2)(r) and 7(38) D&A Regs 99, but that requires a DM to have received medical evidence from a HCP.  As that wouldn’t have happened for the above reasons, the appellant would have to contend instead that the supersession that puts into effect the passed WCA should be made under Regs 6(2)(a) and either 7(2)(a) or (bb)(i) D&A Regs.  That would require the tribunal to infer from either the claimant’s conduct that a change of circs had been notified in time or from the DWP’s conduct that it was acting on its own initiative with a view to supersession, in either case from wk14 onwards.  That may be an ask.  However, to hold otherwise would be to allow the Dept to profit from its own failure, ie to order a medical in time. 

The above problem could arise quite often with ESA to UC transfers so it looks like some caselaw is going to be needed.  Another solution would be for the DWP to delay making the supersession terminating the ESA upon transfer to UC until a medical report had been received.  Obviously, it would have to suspend payment of ESA from the UC relevant date but at least it would keep the door open for a medical to be carried out and for the eventual supersession to be done under Regs 6(2)(r) and 7(38) above under which a backdate to wk14 is uncontroversial. 

Daphne, it might be worth having a word with your contacts in the DWP stakeholder team.

The same issues would arise should the DWP be asked to revise the decision ending ESA in the event of the client later passing the WCA under the UC regime.

another similar problem customer failed ESA 0 points 11 October ESA ends UC claimed 12 October.

Is it worth pursuing ESA appeal to get LCW immediately on UC claim

I was thinking that as ESA ended 11th & UC claim was 12th that ESA would be looked at as a closed period and have no benefit for pursuing appeal unless they would apply LCW immediately on the 12th under UC if won appeal.

my concern is that the following wont apply

Transition from old style ESA
19.—(1) This regulation applies where—
(a) an award of universal credit is made to a claimant who was entitled to old style ESA on
the date on which the claim for universal credit was made or treated as made (“the
relevant date”); and
(b) on or before the relevant date it had been determined that the claimant was entitled to
the work-related activity component or to the support component.