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Forum Home  →  Discussion  →  Housing costs  →  Thread

Client no longer a disabled student

stevemac
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Horsham CAB, West Sussex

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Hi all - 22 yo client is a f/t disabled student, happily in receipt of DLA / IRESA in SG (with SDP) and full HB/CTR

PIP come calling to convert DLA - result no eligibility (decision under appeal)
IRESA payments have stopped and now HB followed decision

Client has been iro IRESA for several years so has had limited capability for work (LCFW) for 196 days +

has she simply lost her eligibility for actual payment of IRESA but continues to have LCFW going forward and if so would then continue to be able to claim HB as a disabled student?

HB Anorak
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This has been the subject of many a thread on here, with Tom H arguing that it is impossible to have LCW if not entitled to ESA, others arguing that LCW is a status in itself that can exist without ESA entitlement.  Is the problem here that student finance is above ESA applicable amount without SDP?  There is no issue with LCW per se as far as ESA is concerned?

stevemac
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Horsham CAB, West Sussex

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HI Peter -the ESA decision letter states

” we cannot pay you an allowance from 9/12/2017. This because you are in full time education”

I am awaiting a call back from the section to confirm if the ESA claim is still live as a credits only case on the basis my client still has LCFW

Thanks for your help

stevemac
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Horsham CAB, West Sussex

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update to above - the ESA section has just rang back to confirm that the “entire claim has been closed - no credits”

No harm in client challenging this decision on basis she can have LCFW without being eligible for payment but in meantime does not look good for HB eligibility

Peter Turville
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As Peter suggests it is more likely that your client is no longer entitled due to student income etc exceeding the applicable amount without the SDP and LA have given an incorrect reason in their decision. Student would remain within the category of ‘disabled student’ who are not excluded under HB Reg. 56 - in your case 56(2)(ea). see CPAG p 250 & 884 (2nd bullet down) as long as your client contines to have LCFW even if now a ‘credits only’ award of ESA.

Although not relevant in your case I recall that there was some debate about how a HB claimant could demonstrate ‘incapacity for work’ and later LCFW for HB purposes without claiming IS/IB/ESA in the absence of any administrative mechanism for HB to refer a claimant for a WCA (‘disabled students’ being the obvious group where this would be relevant). I would suggest this is where the urban myth about having (within the regulations) to have LCFW within ESA for HB purposes orginates. It was simply a practical necessity in the absence of an alternative route to a WCA to determine LCFW for HB purposes.

Edit. note your cross post re probable issue with ESA award itself. Again not unknown for ESA to ‘close’ a claim when it should continue as credit only. Are you a UC FS area? You may need to think about the implications / difficulty of restoring the ESA award / HB award following the (hopefully) successful PIP appeal.

[ Edited: 16 Feb 2018 at 10:10 am by Peter Turville ]
HB Anorak
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Sorry, it has just dawned on me why ESA has ended: no PIP, full time student.  Doesn’t get as far as LCW or student finance calculation.

So yes, it seems to come back to the question whether LCW lives on as a status in itself. I think two parallel challenges might be the answer: one against the DWP not keeping a “credits only” file open; the other against the decision to end HB on the basis that the claimant has been found to have LCW; that status has not changed; losing ESA entitlement for a different reason does not mean he no longer has LCW.  Although of course it could all be academic if his income exceeds the HB applicable amount.

[ Edited: 16 Feb 2018 at 10:09 am by HB Anorak ]
Peter Turville
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HB Anorak - 16 February 2018 10:06 AM

Sorry, it has just dawned on me why ESA has ended: no PIP, full time student.  Doesn’t get as far as LCW or student finance calculation.

So yes, it seems to come back to the question whether LCW lives on as a status in itself. I think two parallel challenges might be the answer: one against the DWP not keeping a “credits only” file open; the other against the decision to end HB on the basis that the claimant has been found to have LCW; that status has not changed; losing ESA entitlement for a different reason does not mean he no longer has LCW.  Although of course it could all be academic if his income exceeds the HB applicable amount.

Agreed. LCFW is a concept / requirement that applies to benefits other than ESA (so ‘stands alone’ or ‘outside’ ESA) but the definition of LCFW and the WCA process are contained within the ESA Regs. So although your client can be excluded from income based ESA as a f/t student if no longer receiving PIP arguably that does not exclude them from a ‘credits only’ award on the basis of still having LCFW nor from HB just because there is no administartive route outside of ESA for demonstrating continuing LCFW for HB purposes.

This complexity is by-product of removing students entitlement to benefits step by step over several decades whilst also constantly changing other benefits and their qualifying rules (and student finance provisions) - ‘joined up thinking’ etc! You can appreciate why CPAG Handbook has never tried to cover this issue in detail!!

stevemac
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Horsham CAB, West Sussex

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Many thanks the 2 Peters!

As a disabled student , client would still be eligible for some HB (even without the disability premia) during the academic year based on student income and would be eligible for full HB during the summertime
HB decision already appealed and will MR the ESA decision

have asked for the PIP appeal to be expedited -

Stainsby
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I think you can rely on Regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999

Effect of a determination as to capacity or capability for work
10.—(1) This regulation applies to a determination whether a person–
(a) is capable or incapable of work;
(b) is to be treated as capable or incapable of work;
(c) has or does not have limited capability for work; or
(d) is to be treated as having or not having limited capability for work.
(2) A determination (including a determination made following a change of circumstances) as set out in paragraph (1) which is embodied in or necessary to a decision under Chapter II of part I of the Act or on which such a decision is based shall be conclusive for the purpose of any further decision

In this particular case, there have been a number of determinations subsequent to the LCW determination, but the LCW determination itself still stands..  (The ESA determinations were those pertaining to the applicable amount following the PIP decision, not the LCW determination)

HB Regulation 56(2)(ea) refers to the person having LCW in accordance with the ESA Regs .

ESA Reg 19 provides for the determination of limited capability for work, and outlines the work capability assessment.

Regulation 10 of the D&A Regs provides that once made, unless a subsequent LCW determination is made,  the LCW determination under ESA Reg 19 is conclusive for any further decision

In other words, for our purposes, the person is still a disabled student

stevemac
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Horsham CAB, West Sussex

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Thanks Stainsby - awaiting HB response