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Work allowance and interaction with LCW/RA under UC or with CESA
Hello comrades,
The case we are looking at is a CESA claimant whose partner is working self-employed and will be claiming UC to top up income we expect under GSE with a start up.
We want to know whether the claim will have a WA applied immediately or whether she will have to wait until she passes the WCA (if indeed she does so) post assessment period.
Our reading of the law is that there is potentially a difference in treatment between those on CESA and those claiming UC on the basis of ill health - the former can receive the WA immediately and the latter not? This is because reg 22 UC regs says to get a WA you must have a limited capability for work and under CESA in the assessment period you are ‘treated as having LCW pending assessment’ (reg 26 ESA regs 2013).
Have we got this right? Our only experience with the WA so far is for those claiming LCW/WRA under the UC route. In this case (over a year ago) the WA was only applied after the claimant passed the WCA (with LCWRA) and we had to appeal in order to get the WA applied (lapsed appeal).
Thanks in advance.
EKS
They will need to be found to have LCW or LCWRA before the WA is applied but it should then be backdated to the start of the claim.
The issue of the difference between ESA and UC in respect of LCW is not relevant. ESA assumes LCW until the assessment in order to allow payment of ESA. UC doesn’t need to do this because there is entitlement to UC anyway as a jobseeker. (Whether or not UC should treat people as having LCW if they present with a Fit Note is a different issue.)
One issue you will face is that if the ESA claim was made earlier than the UC claim, but less than three months before, if client goes into ESA Support Group UC will say the three month relevant period still has to be served so client could, for a time, be getting ESA Support Group but not LCWRA element in UC. I am firmly of the view that UC are wrong to do this but their guidance says that is what happens.
[ Edited: 27 Jun 2022 at 05:06 pm by Ianb ]^That should definitely be challenged Ian!
If you get the support component, you should be getting the LCWRA element.
That’s in the regs (reg 28(5)(b)(i) UC Regs):
https://www.legislation.gov.uk/uksi/2013/376/regulation/28
And if they’re saying that anything to the contrary is in their guidance, I’d like to know what they are reading….
The ADM says the same as the regs.
I had a recent case where UC argued & argued that they were right (I lost count, but at least 4 exchanges on the journal), so we ended up posting an MR of the entitlement decision for the assessment period in which the client first got the support component. Almost immediately it got changed & arrears of LCWRA were paid.
You shouldn’t see ESA with the support comp coming off a UC award without the LCWRA element… but like may things in UC, it does happen despite the law & guidance. Always worth persevering to get that changed IMO.
We’ve got a case whereby the older partner is passported to LCWRA due to HRC DLA but will have to serve the three-month waiting period. Does this mean they should have the relevant work allowance from day 1 of the UC award despite the wait?
Thanks.
Yes I’d say so Paul.
Reg 28 only affects the element, nothing else.
He is treating as having LCWRA via the disability benefit & so the work allowance applies throughout.
^That should definitely be challenged Ian!
...
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1085953/admf5.pdf
F5051
...
You shouldn’t see ESA with the support comp coming off a UC award without the LCWRA element… but like may things in UC, it does happen despite the law & guidance.
Fortunately I have never had to deal with it but the issue has come up in previous threads.
See ADM F5052
Where entitlement to the ESA support component begins after the award of UC, the claimant must serve the relevant period as in F5031 before the LCWRA element can be included in the UC award.
If you follow that guidance a UC statement can include a deduction for ESA Support Group without the LCWRA element in place.
Got it, thanks Ian. That para seems to me to contradict the previous para, & more importantly the law!
I can see what they’re saying, but there’s no legal reference.
I have seen it come up a few times & they’ve always backed down when challenged, but I can see the issue - if you include LCWRA element for the whole AP in which the client starts getting the support comp, they end up getting it before the support comp is payable, & end up with extra (full LCWRA element when only getting the support comp for part of the AP).
Still think worth challenging because going on the guidance, clients lose out.
Apologies for not reading down - they’ve never quoted that para at me (or indeed any of the ADM!) I still think that reg 28 simply says if someone is entitled to the support comp, the relevant period doesn’t apply.
Yes I’d say so Paul.
Reg 28 only affects the element, nothing else.
He is treating as having LCWRA via the disability benefit & so the work allowance applies throughout.
Thanks Will