UC childcare costs when partner is on ESA

I have a client who has been working part time and is claiming UC including the childcare element for sons nursery fees. Her husband was self employed but unfortunately has had to stop work due to health issues. He has now claimed new style ESA and had this backdated. Prior to the ESA claim , UC gave a decision that the couple no longer qualified for the childcare element as he was no longer in work. The couple have been overpaid due to this.

I am intending to support them with an MR on the basis that they meet the criteria for UC childcare element by the fact that she is working and he has LCW. (The ESA has been backdated to cover the period of UC overpayment). My concern is that he is treated as having LCW for ESA during the assessment phase as things stand rather than having been assessed as having LCW.

Reg 39 of UC regs says

“A claimant has limited capability for work if—

(a)it has been determined that the claimant has limited capability for work on the basis of an assessment under this Part or under Part 4 of the ESA Regulations;”

Part 4 of the ESA regs does have a section covering being treated as having LCW prior to being assessed.

However my concern is the wording of “on the basis of an assessment” in the UC regs.

Any thoughts on how likely the MR is to succeed? He is too poorly to look after the child and the 15 hours free childcare isnt enough to cover her hours of work so its pretty crucial they get some help.

Has he now had his assessment, or still not?

No not yet. Claim for ESA made 4th January and he has just had his first payment. As yet no letter confirming what dates this payment covers but seems to be 12 weeks worth going by my calculations.

UC would be correct to disallow childcare costs until the assessment has been carried out, as the LCW status for ESA does not carry through to UC in this case (as you say).

However, once it has been carried out, I think you should be able to get the childcare costs included from the start. Similar to how the work allowance can be included from the start once the assessment has been carried out.