Can LCWRA continue with new UC claim if previous UC claim stopped?

The client was receiving UC.
Rather than via an NSESA claim, she requested a WCA via UC and was then agreed as having an LCWRA. 
Following this she was awarded PIP before starting university.
However, her UC stopped being paid due to the level of her student income.
After six months her UC claim was closed.
She has since made a new UC claim as her student finance is not paid during the summer vacation.
However, UC is not in payment on the grounds she is a student and her LCWRA status no longer stands.
In brief, UA-2021-001444-ULCW held that LCWRA was not lost as the claimant continued to receive incapacity credits despite no ESA being paid.
The client has never claimed NSESA and incapacity credits are not awarded for UC.
However, should the client’s LCWRA with her new UC claim continue regardless?

Interesting question. I’ve been tying myself in knots looking at the 1975 Credits Regulations (there’s some provisions saying ‘you can get credits for LCW, if you would have qualified for ESA but for x, y or z’). So can the finding of LCW for UC get you credits for LCW in the same way as it would someone who was previously on ESA, for the intervening period between the two UC claims? I don’t think there’s anything to go on there, although I might well be wrong and my brain is a bit frazzled by it all now!

What about simply arguing it from reg. 40 of the UC regs?

40.—(1) A claimant has limited capability for work and work-related activity if—

(a)it has been determined that—
(i)the claimant has limited capability for work and work-related activity on the basis of an assessment under this Part

They have had an assessment under ‘this Part’. So they should have LCWRA. There has been no subsequent assessment that finds that they do not have LCWRA. There’s no mechanism that says as soon as UC ends, you can no longer have LCWRA. If you’ve been assessed under ‘this Part’ then you have LCWRA, and that stands. Whether this is a remotely viable argument I don’t know!

Hi Alex,

Thanks very much for this.

I think that you’re on to something.

It’s simple, it’s logical, and definitely worth a go.

Hi Ken,

1. I think the answer to this lies in the finality of the determination that has LCW which is embodied in the earlier decision on UC that this is the case.

2. Reg. 40 of the UC etc (D&A) Regs, made under s.17(2) SSA 1998,  makes that determination final for purposes of further such decisions.

3. So client definitely has LCW.

Martin

Note that does not answer at all whether client can get LCWRA element from AP1 of the new claim- it just deals with why reg. 14(1)(b) UC Regs is met so as to bypass the “not receiving education” rule.

Separately from that then I think you can say falls within reg. 28(3) and so no waiting period for LCWRA? Note though that reg. 40 of the D&A Regs does not require LCWRA determination on previous award to be final for purposes of new award (just the LCW bit).

Martin

Thanks Martin!

Hi Ken

Just wondering how you got on with your case please?  I have a young lady in the same situation and am considering Mandatory Reconsideration.

Did Universal Credit accept any of those arguments?

Thank you in advance.

I would also love to know if your client was successful in reclaiming UC as I have a student in this situation.

They seem to very rarely reinstate LCWRA-  have only seen it where an award was closed due to earnings and then reclaim within a few months. I even had an an award that was closed in error that was overturned at MR stage, had to go through MR stage again and contact Partnership Manager and MP to get them to reinstate the LCWRA.
Keen to know how you get on with this one.