Ejected from the lobster pot

We are still a live service area. A cautionary tale ......

Client age 17 left f/t ed. last summer. Lives with parent. Was detained under s2 at 28 days assessment centre. On discharged claimed UC without assistance. Clearly should not have passed the ‘gateway’ but UC was awarded from end of 1st assessment period in late Sept. & UC say he has been paid 3 monthly payments in total. There was probably a sanction during this period as he ceased to engage with any services and failed to attend appt at Jobcentre in Sept.  (but UC unable to confirm!).

Client re-engages with support services and submits med cert to UC in midy January. UC payments stop. UC now say a final payment (for just £5.77) was made in Jan.

Support worker and client try to claim ESA on advice of local Jobcentre. ESA won’t accept claim due to ‘live’ UC claim. UC reject request for hardship payment because no UC claim (you get the picture).

Client & support worker contact our service. Amongst limited paperwork is a recently issued ESA50.

We contact UC contact centre who state claimant cannot stay on UC because he has submitted med certs and that is why his UC claim was closed.

UC adamant that in a live service area claimants cannot stay on UC when they become sick and must claim legacy benefit.

ESA now confirm that a claim for ESA was made and accepted end of Jan and initial payment has just been made (and hence ESA50 issued).

There is no suggestion client requested his UC claim be closed at any point in this process. UC appear to have closed it on their own initiative!?

There is a gap in payments between UC and ESA (the exact period we are still trying to establish). UC clearly have some access to ESA system but ESA say they have no access to UC live system. ESA backdating, request for ex-gratia payment etc made.

Whilst it is clearly in our clients interet to revert to legacy benefits - given his vulnerability and conflicting or non-existent information he and support worker appear to have been given by UC, ESA and Jobcentre it’s another shining example of how UC simplifies!

Ah this is really interesting Peter. I have just been dealing with a complex case which touches on this issue. We are in a live service area.

Client was on ESA, failed WCA (the usual) and while requesting his reconsideration was placed on UC by my colleague - he probably should not have been put on UC but I recall that for a time there was some confusion over whether JSA or UC was correct option, if outwith the first month after ESA disallowance date. His ESA reconsideration was SUCCESSFUL (which is worthy of note by itself) but it transpires that this was never actioned by DWP.

After period of time when the client made do with normal conditionality UC, he came to see me and I have been trying to resolve the initial error. I was assured by DWP twice that this was their error and it could be rectified by closing UC and restoring ESA at the correct rate.

However this did not happen and so I approached the local MP’s office who are very good at getting things moving. I have just heard back today that DWP are using the “lobster pot” defence (which is not a chess move apparently) and saying that as the client has been on UC he can’t go back to a legacy benefit and so his benefit is going to be rectified via UC.

This is contradicted by an earlier client of mine who became ill during a UC claim and was advised that he could either stay on UC with disability element or close UC and make new ESA claim - and, in fact, the adviser I spoke to at UC RECOMMENDED the ESA option. This was February last year. It was quite messy (UC don’t pay part months so client lost a bit of money and he also had to have a special reference number when calling about the ESA as his NINO would cause some sort of problem) but do-able.

As such I am a bit confused. It seems to me that the (first) client did not, in reality, ever meet the Gateway Criteria for UC as he only ever claimed UC under the fiddly “fake JSA” terms which clients need to pretend to comply with when they need money while requesting an ESA reconsideration. I suppose the intention with the “lobster pot” is that it slowly captures additional claimants but in reality if my client closed his UC today he would surely not be able to open a new UC claim?

In a live service area it remains the case (at least in theory) that a claimant can withdraw their UC claim by contacting DWP. Once their UC claim has been closed (subject to usual admin delays etc) they can then claim a legacy benefit because at that point they would no longer meet the UC gateway conditions (for example because they now have limited capability for work).

However it should not be possible for DWP to close down their UC claim (unless it can be superseded because they no longer meet a basic UC condition of entitlement such as capital exceeds £16K, or the complex rules if they become one of a couple). Noting the different position where income exceeds so that they remain on UC for 6 months but have an award of £0 for the relevant assessment period(s).

In our case our client had a change of circumstances to limited capability for work but did not (as far as we have been able to establish) withdraw his claim for UC. So once he submitted a med cert this should have triggered the LCFW/WCA process within UC rather than DWP ‘ejecting’ him. Although he did not meet the ‘gateway’ criteria on intial claim because he was awarded and paid UC DWP cannot close his UC award for this reason.

Having been ejected (or even if he did withdraw) and now having an award of IBESA it raises other issues:
1. the assessment period for ESA only starts from the date of the ESA claim - it cannot link back to any LCFW period in UC.
2. he has to serve 7 waiting days as there is no linking rule for UC (as its not designed to allow exit from the lobster pot).
3. he may have lost out on some UC if his award ended part way through an assessment period (complicated by his UC apparently being subject to a sanction at the date it ended).

Therefore he has lost out on 7 days ESA entitlement and arrears of the appropriate component if he ‘passes’ the WCA.

Others may have a different view on this senario?

I think Peter you are right here, as no period of LCW can be considered for linking periods unless it is covered by a claim to ESA, therefore a period of LCW on UC appears not to count.

I now have a client looking to exit the lobster pot in this same situation -
Client claims UC (live service), then puts in a sick note. We assist with PIP claim and advise that she could withdraw UC claim and claim ESA. We lose contact and by the time she gets back in touch, she has now been awarded PIP Enhanced DL & Standard Mob, and advises that she had her WCA on UC on 07/01/17, awaiting a decision. We advise that she could now withdraw UC claim and claim ESA as would be better off due to SDP and EDP, but advise wait for the WCA determination first as there could be some backpay of LCW or LCWRA elements.

So although the loss to the client will be the 13 weeks of SGC/WRAC on the new ESA claim, the 7 waiting days and will need to end her UC claim times carefully to minimise the loss of the UC assessment period, she is still better off on ESA at every stage of the claim (assessment phase, if LCW, if LCWRA) due to SDP and EDP. Plus there is the future transitional protection when migrated onto UC.

I am somewhat nervous about actually trying to do this as there will be a period of non-payment for the client and in a worst case scenario, UC and ESA both getting confused and neither paying her. Plus - she will need to make an appropriately timed HB claim so as not to miss out on any rent getting paid.
Fingers crossed we can do it sucessfully.

Perhaps if the WCA carried out on UC is successful, we could write to ESA and invite them to make a decision on scrutiny based on the previous WCA outcome? Somehow I doubt that will work.