LCW element

Apologies didn’t read original posts assumed they had claimed UC with an ESA appeal outstanding ignore me.

Actually having said that would still still escalate via MP to break through the impasse.

JayKay - 25 June 2019 03:31 PM

I’m still having problems with this one.

ESA say that it is right that there is a gap in the claim.  They are saying that where a claimant has claimed JSA during the MR period, this stays in place even where the appeal is successful.  They say that they did pay the work related activity element to the claimant for the period that they were on JSA, so they are not owed any money.

UC are saying that they won’t add the LCW element until ESA correct the date of claim information that they have supplied.

Am I right in arguing 1) the tribunal decision should have had the effect of reinstating ESA with no break in claim, and any JSA claimed should have been offset against the backdating of ESA that was owed.
2) It is not possible to add the work related activity element to a JSA claim, it is only payable under ESA. 
3) UC should not need the start date of ESA amended if we have provided proof of LCW in the form of the tribunal decision.
Thanks

1) Definitely correct. The decision awarding JSA should have been revised. See DMG paragraph 03348 and D&A Regs, Reg 3(5G).

2) Also true.

3) UC will need proof that there was entitlement to ESA from before April 2017. Proof of LCW is not enough. See the discussion earlier in the thread.

I took it that as they have provided proof that following an appeal they were found to have LCW from 21/3/17, they would fulfil reg 11(b) of schedule 2?

Para. 11(b) of Schedule 2 only applies to an LCW determination made for a UC award under the UC Regs. See para. 8(1)(a)-(b) and also the regs quoted in para. 11(b).

We’ve asked ESA to look at the way that the tribunal decision was implemented again to close the gap in the claim.  They haven’t made a decision on this yet, so the gap is currently still there.
But UC have looked at their decision again and have awarded the LCW element.

I’m going to pursue the ESA decision regardless, as I would prefer it to be correct - otherwise a UC DM could look at this again in the future and decide that they have been overpaid.

Just had another similar case where a claimant is getting c-bESA and has been placed in the support group (from Dec 2018).  UC claim made prior to ESA claim.  Case manager adamant that claimant not entitled to LCWRA element on UC, ‘wouldn’t be fair to get both support group and LCWRA element’, but would get if on I-b ESA rather than c-b ESA, so they thought that claimant should be ‘referred’ to get c-b ESA converted to UC.  Case manager said that deals with a lot of these cases so knows they are right, and cannot refer on to a DM to get it looked at as they have no way of contacting them.

This coupled with case manager’s refusal to accept explicit consent added on to claimant’s journal as said the claimant needs to complete a paper form of authority and they need to provide a good reason why they need a representative.

After about 5 hours of phone calls managed to get sorted by escalating the case…but it’s like banging your head against a brick wall.