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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Claiming ESA New Stlye “Credits only” in order to get the WCA in place for UC

JACNCC
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Welfare Rights - Norfolk County Council

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To be honest, I wasn’t totally sure which section to post this in, as it involves 3 different benefits, but the ultimate goal is to have the link in to UC.

Backstory is that client is in receipt of WTC and CTC as a lone parent and with the 30 hour element. Her son is aged 19 years old - will be 20 years old on late January 2021.

He has disabilities and is in receipt of PIP at the ER of both components and is still in full-time non advanced education and will be past his 20th birthday.

I have seen before the issues with a young person in his circumastances being refused UC as they have to have had the WCA, in order to claim UC and the general consensus seems to be to get the young person to claim New Style ESA for credits only, but this will prompt the WCA.

My question is, if the young person makes the ESA claim before his 20th birthday, will this stop the Child Tax Credits claim? We obviously don’t want mum to lose out on money, but wondered, with it being a “credits” only claim, could we get past there being a gap, if we have to wait until he has turned 20 years old?

dereksi
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Welfare rights worker - Contact a Family, Glasgow

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Hi

I don’t think a claim for contributory ESA (that has no chance of an actual award) should bring CTC to an end. Rule 4.1, case E of Reg 3 of the CTC Regulations says that you cease to responsible for a young person if they claim contributory ESA in their own right AND “that benefit is paid to or in respect of him or her for that period”. So looks like CTC payments should only stop if there was an actual award of cESA.

JACNCC
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Hello dereksi

Thank you for that - very useful information and hopefully a good “work around” to get him on to UC without mum being financially penalised before that date.

bristol_1
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My question is a bit related to this:

I have a mixed age couple who have just moved from IS and CA in the wife’s name, to UC when the wife reached state pension age. Their SRP income is currently higher than their max UC, which consists of a couple allowance and carer element (no HCE as own outright), so UC is £0. The husband had an ESA appeal in 2016 which placed him in the Support Group, but following that appeal they decided not to switch back to claiming ESA with him as the claimant, because the wife was on IS and CA and they didn’t want the upheaval/ESA appeal was not about the money but the principle that he was not fit for work & WRA.
So,
Does the husband have any potential for the inclusion of LCWRA in the UC claim, given that it has previously been determined that he has LCWRA (UC Regs 40 (1) (a)(ii))? Or does he have to have been in receipt of old style ESA for this to apply? (UC TP Reg 19 seems to suggest this)

Secondly, and more related to the OP’s question here - will he have to claim “credits only ESA” to get a WCA under UC and potentially get some entitlement if he’s found to have LCWRA? Or is this possible via the currently £0 valued UC claim?

Va1der
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bristol_1 - 05 August 2020 11:47 AM

Secondly, and more related to the OP’s question here - will he have to claim “credits only ESA” to get a WCA under UC and potentially get some entitlement if he’s found to have LCWRA? Or is this possible via the currently £0 valued UC claim?

Reg 28(7) of the UC regs covers this: Once he has notified DWP of a health condition that limits his capability to work, the relevant period for the WCA process should start, and where it would otherwise stop due to excess income, should be kept open with a 1 penny award.

In practice however, UC might just close the claim. I haven’t tried the approach, but you might have better luck using the suggested credits only ESA route.

AlexJ
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My original post was nonsense and nobody had replied, so I’ve started from the top, hence the edit.

Under s21 of the UC (Transitional Provisions) Regulations 2014, a claimant who has credits for LCW or LCWRA under the Social Security (Credits) Regulations 1975 can be treated as having LCW in relation to their UC claim. She he should get the LCWRA element.

[ Edited: 5 Aug 2020 at 12:33 pm by AlexJ ]
AlexJ
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bristol_1
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Thanks both - I’d overlooked both the regs you pointed out. Yes, I agree that practically an ESA credits only claim might be more straightforward than a WCA via UC alone, due to on the ground knowledge by UC ...

I thought the inclusion of LCWRA from such a while ago was a long shot but I’m grateful you’ve pointed out the relevant reg to me. The difficulty I think will be establishing the client’s ESA credits only claim; client says he was never contacted by ESA since the successful 2016 tribunal (e.g. for a reassessment/further WCA), so I’m not sure quite where to look for the evidence to present to UC that he has LCWRA. I think he needed to explicitly claim credits only ESA for this to count & I’m not sure that he ever did.

CPAG WBH says - ‘You can apply for ESA, even if you are not entitled to the benefit, and maintain a ‘credits only’ claim for limited capability for work. [..] you must apply to Jobcentre Plus. Unless the credits are awarded automatically, you must apply for them before the end of the benefit year (ie, by the first Saturday in January [..]) following the tax year in which you are entitled to the credit.’

Ianb
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bristol_1 - 06 August 2020 09:02 AM

Thanks both - I’d overlooked both the regs you pointed out. Yes, I agree that practically an ESA credits only claim might be more straightforward than a WCA via UC alone, due to on the ground knowledge by UC ...

I thought the inclusion of LCWRA from such a while ago was a long shot but I’m grateful you’ve pointed out the relevant reg to me. The difficulty I think will be establishing the client’s ESA credits only claim; client says he was never contacted by ESA since the successful 2016 tribunal (e.g. for a reassessment/further WCA), so I’m not sure quite where to look for the evidence to present to UC that he has LCWRA. I think he needed to explicitly claim credits only ESA for this to count & I’m not sure that he ever did.

CPAG WBH says - ‘You can apply for ESA, even if you are not entitled to the benefit, and maintain a ‘credits only’ claim for limited capability for work. [..] you must apply to Jobcentre Plus. Unless the credits are awarded automatically, you must apply for them before the end of the benefit year (ie, by the first Saturday in January [..]) following the tax year in which you are entitled to the credit.’

I recollect this being discussed in other threads. There is no such thing as a credits only ESA claim. Claiming ESA triggers the WCA resulting in a decision about LCW. NI credits can then be received on the grounds of LCW/LCWRA - but this is not an ESA claim/award. In your case your client applied for ESA and the tribunal determined they had LCWRA.

(Surprisingly) I’ve never had a client in a credits only situation and have no idea what evidence a person in this situation would expect to evidence their LCW/LCWRA status and to confirm that NI credits are being applied. I am sure others will post on that.

Your client could however check their NI record to see if they have been getting NI credits.

bristol_1
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Thanks- client might be able to check NI record. In the meantime I’m minded to send UC a copy of his ESA tribunal outcome from 2016, tell them to follow Reg 21 of the TP Regs and cross my fingers and hope!