Forum Home → Discussion → Universal credit migration → Thread
LCWRA relevant period for MAC where previously entitled to ESA support component
Hello all
AskCPAG has been updated with a ‘what’s new’ update regarding a recent UT decision: https://askcpag.org.uk/
“the older member of a mixed age couple whose entitlement to ESA, including the support component, ended on reaching pension age should not have a three-month wait for payment of a UC limited capability for work-related activity element”
Also touches on backdating
Direct link to the judgment here: https://cpag.org.uk/sites/default/files/PR-v-SSWP——UT-Judgment—-29-11-2023.pdf
Thanks Owen, this will be such a useful decision for those people on ESA who don’t realise they need to claim UC before their ESA award ends when they reach State Pension age in a mixed-age couple.
What a fantastic Christmas present, well done CPAG.
Thanks Owen, this will be such a useful decision for those people on ESA who don’t realise they need to claim UC before their ESA award ends when they reach State Pension age in a mixed-age couple.
What a fantastic Christmas present, well done CPAG.
Whatever Paul said!!!!
I had one of these cases where they became a MAC in October and were actually told by DWP that they would be worse off if they applied before the birthday. I’m much happier dealing with it this way than through just a complaint about bad advice from the DWP.
Hello
Client is older member of a mixed age couple and was in receipt of irESA with the support component until reaching SRP age, when ESA stopped and he claimed UC with his partner. He has requested a backdate to when ESA ended (a gap of 9 days) and UC has refused the request. He can request an MR of the backdating decision and will do this. Should he also request an MR of the awarding decisions to date on the basis that the LCWRA has not been included from the start of the claim and this application of Reg 28(1) of the UC Regs discriminates against him contrary to his rights under Article 14 when read with A1P1 of the EHCR and the offending part of Reg 28 must therefore be disapplied?
Been a busy week, brain closing down now. Thanks in advance.
I think the backdating part of the decision in PR was based on the fact that the claimant in that case had not received notification from DWP that ESA was going to end (so it came under Reg 26(3)(a) of the Claims and Payments Regs). Your client needs to show that Reg 26(2) and (3) apply if they are to get it backdated to their birthday.
But yes, they should definitely be arguing for the LCWRA element to be paid from day one (whether that’s their birthday or a few days later). And while they can restate the argument in PR, they could also just cite the decision in PR and submit that the circumstances are basically the same in their case. This argument is entirely separate from the argument on backdating - the UT decision says (at [58]) that backdating under Reg 26(3)(a) cannot take it back to before they reached pension age (although I am not completely sure why this wasn’t argued).
It’s also worth noting that both claimants in a couple have to satisfy 26(2) and (3) see: Reg 26(4)
(4) In the case of a claim for universal credit made by each of joint claimants, the prescribed time for claiming is not to be extended under paragraph (2) unless both claimants satisfy that paragraph.
It’s also worth noting that both claimants in a couple have to satisfy 26(2) and (3) see: Reg 26(4)
(4) In the case of a claim for universal credit made by each of joint claimants, the prescribed time for claiming is not to be extended under paragraph (2) unless both claimants satisfy that paragraph.
That’s a good point. In the PR case Reg 26(4) isn’t specifically mentioned, although it is apparent that it was IR-ESA (as in CA Adviser’s post above) so if DWP didn’t send a letter to say ESA was ending then that affects them both. But if they’re relying on one of the other reasons in Reg 26(3) then it’s not necessarily so straightforward.