Defective UC claims and disabled full-time students

Combining defective claims with disabled full-time students for added confusion…

Clt gets PIP and appealing WCA decision on ESA. He applied for UC and was turned down on grounds that he’s a full-time student. Clt would rather stay off UC, so will ask for ESA pending appeal (arguing that UC claim defective) rather than challenging UC refusal.

If clt wins ESA appeal then would this retroactively validate the UC claim and abolish ESA?

I think you will find it difficult to argue the claim was defective. Just because a student is not eligible for UC doesn’t make the claim defective. In fact DWP claim it is virtually impossible with the computer system to make a defective claim. They further claim that even a defective claim would still terminate an ESA(IR) award. See here.

An ESA award pending appeal does not require a claim, and can be made despite full-service UC. However, if the award starts prior to the date UC was claimed, it will terminate on the date the UC claim was made (although arguably a fresh award could then be made starting immediately). You may therefore prefer the new ESA award to start on or after the day the claim for UC was made. See Art 4(9) of the No. 9 Commencement Order.

Normally an ESA award pending appeal would start from the day after the previous entitlement ended, but if you wanted it to start later than that (e.g. after the date the claim for UC was made), you could try and ensure the medical evidence submitted only starts at a later date.

Coming to what will happen if the appeal is successful: I think it is implicit in Reg 147A(6) of the ESA Regs 2007 that the award made pending the appeal is still a separate award, and does not revert to being a continuation of the old award. That being the case, any ESA award made pending an appeal which began after the UC claim would not be retroactively abolished if and when the appeal is won.

Thanks Charles

sort of linked…but has anyone had a uc claim for a ft student rejected as no lcwf…establish lcfw via credits only claim…then went back and had uc refusal overturned?

Hi - did you get any replies to this?

In these cases isn’t the LCW decision effectively a condition of entitlement to UC (as it is only if a student with PIP has this that they will get past the rule against being in relevant education)?

If that is correct, then isn’t the decision maker required to assess LCW as part of assessing the initial claim for UC?

And following from that, when the refusal goes to appeal mustn’t the Tribunal that deals with the case include a Doctor to allow the LCW issue to be determined as whether client has LCW is an issue in the appeal?

It seems to me not dissimilar to the cases where a person claimed ESA and could not be treated as having LCW and additionally there was insufficient information to determine they did not have LCW- it is accepted in those cases that the DM needs to gather information to make a decision on LCW in order to determine the claim. Why are disabled students claiming UC different?

(note I don’t mean to say such a person would not also be well advised to engage in the work around of claiming credits only LCW etc which seems to work - just that if you pick up a claimant who finds their UC refused because they don’t have LCW and has not done the credits only route first then the argument is the DM needs to decide LCW in order to decide claim for UC).

Martin Williams - 10 September 2019 02:18 PM

It seems to me not dissimilar to the cases where a person claimed ESA and could not be treated as having LCW and additionally there was insufficient information to determine they did not have LCW- it is accepted in those cases that the DM needs to gather information to make a decision on LCW in order to determine the claim. Why are disabled students claiming UC different?

I have made the argument in the past that there is a slight difference between UC and ESA. Other posters (Elliot Kent and others, if I recall correctly) did not agree with me though.

My argument was that for ESA, LCW is a status which exists independently of the assessment. See the wording in the ESA Regs 2013 reg 15(1) and the ESA Regs 2008 reg 19(1). An assessment is simply needed to provide evidence of LCW. It is therefore correct to say that a WCA has to be carried out before any decision can be made.

However, for UC, LCW is a status conferred by the assessment. See the UC Regs reg 39(1)(a). I therefore think it is debatable whether a DM/Tribunal are required as a matter of law to carry out a WCA before deciding the claim.

I think we had that discussion here :

https://www.rightsnet.org.uk/forums/viewthread/14654/

But I suppose there are similar points with regard to disabled students.

Yes, that was it.