WRAG Component lost after moving to UC

My client was on ESA getting the WRAG component but tried employment for 10 weeks. It didn’t work out for him but he couldn’t go back on legacy ESA because the area he lives in was full service.

Had he been in a legacy area he could have reclaimed ESA and regained WRAG component, but even though he is claiming ESA under UC they say he has lost any entitlement to it.

Are they correct?

Although your client’s ESA award has ended (presumably correctly), there is no reason to suppose that he ceased to be entitled to national insurance credits as a result of having limited capability for work. In the DWP lingo, he became - or should have become - a “credits only case”.

Credits only cases have transitional protection from the abolition of the WRAC as a result of paragraph 14 to Schedule 2 of SI 2017/204.

Additionally, credits only cases who have been through an assessment under the rules for old-style ESA are entitled to be treated as having LCW from day one of their UC claim - reg 21 of the UC Transitional Provisions Regs.

So yes by the sounds of it I think this ought to be pursued.

Thank you for your response.

The problem is that my client took on paid work and thus no longer qualified for ESA. He had expected it to be permanent, but was found to be unable to do the job, and was dismissed within 10 weeks.

It has worked well for his WCA as I was able to tell them the mistakes he made - such as walking on the stage with a mop and bucket (he was asked to wash the stage at 9am, but only remembered at 3.30pm) during a performance! We both chuckled about that, but it shows how much he struggled with instruction.

So it would seem that he has lost his right to be returned to the component he was previously on as I suppose that the link was severed?

Whilst his ESA entitlement stopped, there is a separate question of whether he remained entitled to national insurance credits as a result of having limited capability for work. It is possible to continue to receive these credits even after ceasing to be entitled to ESA if your claim stops for some reason other than you being found fit for work.

For instance, if I’m getting income related ESA and then win the lottery, my ESA will stop but my national insurance credits will continue - because the fact that I’ve won the lottery doesn’t mean I no longer have health related barriers to work.

Being in receipt of credits gives you transitional protection even if the ESA claim has stopped on the basis of the provisions above.

I don’t see why your client would not still be entitled to credits (I don’t think the fact that he was earning from work would mean he was no longer entitled although you might want to check that).

If he was working more than 16 hours per week, or earning over the permitted work limit then wouldn’t that mean he no longer had limited capability for work - that is the reason presumably his ESA stopped and so would any credits. I think because there is a gap he does have to start from scratch on UC - there aren’t any linking rules - neither reg 19 nor reg 21 apply.

Yeah Daphne is right here. Reg 44 of the ESA Regs provides that you no longer have LCW if you do work. So ignore my ramblings above.

Does employment on trial no longer exist in FSUC areas? He would be able to work more than 4 but less than 12 weeks if my memory serves and then go back onto benefit without penalty.

New-style ESA still has a 12-week pLCW linking rule (reg 86), but UC itself does not, see CPAG p1021-2. In a similar case, we suspected that DWP are right to decide that old-style ESA can not link with new-style ESA when separated by a short trial period of work (this was, of course, after DWP had advised the claimant they would have 12 weeks protection, so give work a try).

I can’t remember if it’s still under appeal or not, but I think one point against was that you need two pLCWs to link, and the definition of “period of limited capability for work” in reg 2 of the 2013 regs is “a period throughout which a person has, or is treated as having, limited capability for work under these Regulations, ...”, i.e. presumably not also under the 2008 regs.

Sorry for replying to myself, but just to add: in the case I had in mind, my colleague informs me that new-style ESA was eventually awarded, following on from a period of employment that had itself terminated old-style ESA - however, this was likely not via the linking rules, but was the result of a complaint accepted by DWP, so following the rules might well be off the table in that case. I will stand by my previous post, i.e.:

(a) I think the previous posts above overlook the 12-week linking ESA rules, which can join together periods of LCW ...

(b) ... but I would tentatively suggest that old-style ESA can not link with new-style ESA. Happy to be proved wrong on this point though.

... and I’m replying again, to say please ignore my point (b) above. A helpful correspondent has pointed out to me that in my previous posts I have overlooked Article 10 of the No. 9 Commencement Order:
http://www.legislation.gov.uk/uksi/2013/983/article/10/made

This explicitly allows for references to periods of LCW in the 2013 regs to be read as if they refer to periods of LCW under the 2008 regs. Therefore it appears that the periods of LCW should link across gaps of 12 weeks or less, and allow old-style ESA to link with new-style.

As my correspondent also points out, the extra c-ESA may not make the claimant better off overall, if they are within UC anyway. But I think it may at least remove any doubt that work or support group status can apply from the start of the UC award in cases like this.