Section 1B Welfare Reform Act 2007 [Further entitlement after time limiting]

Client’s NS ESA (had LCW) ceased due to a result of Section 1A(4) i.e. 365 day rule. His LCW carried on through his UC claim. Couple years later client found to have LCWRA.

So we tried to resuscitate his NS ESA claim on the basis of Section 1B Welfare Reform Act 2007 [Further entitlement after time limiting].

DWP regional customer services have written to our MP and advised that as his LCW NI credits ceased and UC NI credits took precedent i.e. break in LCW credits. Section 1B does not apply.

Our argument is that the dept have conflated Section 1A(1) with 1A(4).

In other words the credits issue is not relevant.

It is merely whether client had ceased at any time subsequently having LCW that matters. Client hadn’t ceased to have LCW at any point.

Would others concur?

I’m not sure its entirely straightforward. I think the DWP might say that when he ceased to qualify for credits, he also ceased to be LCW for the purposes of the 2007 Act, because the determination that he has LCW cannot exist without a corresponding decision which it can attach to. Whilst he has LCW for the purposes of the 2012 Act in terms of his ongoing UC award, that is a distinct concept.

Not sure that is necessarily the correct way to read the situation but I would have to give it more thought. I doubt it is going to be resolved in correspondence and your client would have to put in an appeal - the question is then whether that is really worthwhile given the limited difference it will make to his financial situation.

Elliot Kent - 29 October 2024 05:31 PM

I’m not sure its entirely straightforward. I think the DWP might say that when he ceased to qualify for credits, he also ceased to be LCW for the purposes of the 2007 Act, because the determination that he has LCW cannot exist without a corresponding decision which it can attach to. Whilst he has LCW for the purposes of the 2012 Act in terms of his ongoing UC award, that is a distinct concept.

Not sure that is necessarily the correct way to read the situation but I would have to give it more thought. I doubt it is going to be resolved in correspondence and your client would have to put in an appeal - the question is then whether that is really worthwhile given the limited difference it will make to his financial situation.

Thanks as always Elliot for the response.

Regarding the latter question, client claimed NS ESA in 2018, followed up the application a number of times until 2022, but dept did nothing, denying the claims existence. Client came to us regarding help with moving from LCW to LCWRA re: UC, and mentioned that he had made a claim for NS ESA, but it had been buried.

Transpired after a SAR he made a claim but form lost by dept. Another long story, but suffice to say the case has trundled on for 3 years he got a retrospective award for 365 days.

Whether it is or was worthwhile on a monetary basis (that said in the future having an award of ESA could come in handy e.g. an inheritance), client wants to pursue it. For our part its whether we can make an arguable case or can’t and advise him accordingly.

Any thoughts on the WRA 2012 explanatory note - section 52 Further entitlement after time-limiting - https://www.legislation.gov.uk/ukpga/2012/5/notes

Well his position seems arguable, for the reasons that you give, I am just not entirely convinced that its correct. Your client can reasonably say that he has had LCW throughout and now has LCWRA so a further award ought to be made. Perhaps it is then for the DWP to establish that your client has the wrong sort of LCW and attempt to explain the significance of that to a judge.

Elliot Kent - 31 October 2024 09:06 AM

Well his position seems arguable, for the reasons that you give, I am just not entirely convinced that its correct. Your client can reasonably say that he has had LCW throughout and now has LCWRA so a further award ought to be made. Perhaps it is then for the DWP to establish that your client has the wrong sort of LCW and attempt to explain the significance of that to a judge.

Thanks Elliot, as per usual etc etc etc.

” The wrong sort of LCW” in my view is legal nonesense once you read through the lesgislation starting with S8 WRA 2007.

S8(1)  provides that the determination of LCW will be determined in accordance with Regulations ( this takes us to Part 4 ESA Regs , in particlar Reg 19)

S37(3) WRA 2012 provides that LCW is to be determined in accordance with Regulations( ( this takes us to Reg 39 UC Regs

Reg 39(1) (a) provides

Limited capability for work
39.—(1) 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

There is thus only one kind of LCW

Stainsby - 31 October 2024 01:01 PM

” The wrong sort of LCW” in my view is legal nonesense once you read through the lesgislation starting with S8 WRA 2007.

S8(1)  provides that the determination of LCW will be determined in accordance with Regulations ( this takes us to Part 4 ESA Regs , in particlar Reg 19)

S37(3) WRA 2012 provides that LCW is to be determined in accordance with Regulations( ( this takes us to Reg 39 UC Regs

Reg 39(1) (a) provides

Limited capability for work
39.—(1) 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

There is thus only one kind of LCW

But that is one-directional. From ESA to UC only.
Someone who has been assessed under UC still (legally) has to be reassessed for ESA.
Effectively, the legislation you’ve quoted doesn’t stop the test for ESA being more stringent than that for UC (I’m not saying that it is in practice!).