Claiming NSESA, getting a WCA and NI credits when parent/guardian still reciving CHB,CTC or UC

Hi,

Is it possible for a young person to make a NSESA claim, have a WCA and be awarded NI credits while their parent/guardian is receiving CHB, CTC or UC for them.

Or does the parent/guardian receiving CHB, CTC or UC prevent a NSESA claim, WCA and a NI credits award? 

Would a successful NSESA credits claim impact on the parent/guardian’s CHB, CTC or UC claim?

In short, the issue relates to how a disabled young person can seek to establish they have a LCW before they become a full time student.

Thanks to anyone who can help.

Hi Ken

We’ve had a few cases via our Helpline where we advised families to try and lodge a credits only claim for contributory ESA for their son or daughter while they were still getting tax credits for that young person. This is something we’ve advised where a young person in full time non-advanced education was approaching 20.  Our thinking was that if they could get a WCA carried out prior to their birthday this would allow UC to be paid straightaway as soon as they turn 20 (when CB and CTC automatically end due to the young person’s age).

Unfortunately none of the families we spoke to regarding this came back to tell us whether this tactic had been successful or not.

I don’t think that there is anything in the ESA regulations that prevents a claim from being made just because the claimant’s parents are currently receiving benefits for them as a qualifying young person. Instead it’s the other way around – if the young person starts to receive certain benefits in their own right, including contributory Employment and Support Allowance, this means that they can no longer be treated as a qualifying young person.

It looks to me that only the award of nsESA should impact on payment of child benefit, tax credits or a parents universal credit, not the mere act of claiming.  For example if we look at tax credits, regulation 3, case E of the Child Tax Credit Regulations 2002 states that a parent is not treated as responsible for a young person who “claims contributory ESA…in his or her own right and that benefit is paid to or in respect of him or her for that period”. The equivalent rules in child benefit and universal credit are if anything even clearer. Regulation 8(2)(e) of the CB Regs states that child benefit isn’t payable in respect of a qualifying young person ‘in receipt’ of ESA. Regulation 5(5) of the UC Regulations simply says that a person who is ‘receiving an ESA’ is not a qualifying young person. So in short it is receipt of ESA, not a claim that brings these payments for a qualifying young person to an end.

That’s my take anyway.

Derek

Hi Derek,

Thanks for your reply and for going in to such detail.

I agree with the points you make.

Following the recent disabeld students and UC regs it looks like the only work around is an earlier NSESA credits claim.

Hi Ken

I think that you’re right. However my concern is that the new regulations, and in particular the explanatory memo may mean that the DWP are less likely to agree to arrange a WCA in those cases where it is clear that the student has no hope of meeting the contribution conditions. In our experience some young people already have great difficulty in getting the DWP to act on a credits only claim.

For those students who are turning 20 and in non-advanced education there may be scope for arguing that the course is compatible with any work related requirements applied to them and that consequently they cannot be treated as receiving education under Regulation 12(4). There may be a particularly strong case for arguing this where the young person is on some sort of life skills course.

Derek

dereksi - 10 August 2020 01:12 PM

Hi Ken

I think that you’re right. However my concern is that the new regulations, and in particular the explanatory memo may mean that the DWP are less likely to agree to arrange a WCA in those cases where it is clear that the student has no hope of meeting the contribution conditions. In our experience some young people already have great difficulty in getting the DWP to act on a credits only claim.

For those students who are turning 20 and in non-advanced education there may be scope for arguing that the course is compatible with any work related requirements applied to them and that consequently they cannot be treated as receiving education under Regulation 12(4). There may be a particularly strong case for arguing this where the young person is on some sort of life skills course.

Derek

Leaving aside student status surely somebody should be entitled to a WCA in order to assess LCW so that they can get NI credits. The only way to get the WCA is to apply for ns-ESA so DWP shouldn’t be gatekeeping this. Or am I missing something?

Hi Ian. Yes in principle a student has a right to a WCA in order to establish that they’re entitled to credits under Reg 8B of the Social Security (Credits) Regulations 1975. However in our experience different young people have very different outcomes when trying to get a ‘credits only’ claim accepted. Some of families we spoke to on our helpline were able to get a WCA organised with minimum fuss but in many other cases families had hit a brick wall. I’d be interested in other advisers experiences? I guess my worry is that given many young people already struggled to get a credits only claim actioned prior to the new regs, this is now even more likely given the claimed policy intention set-out in the explanatory memo i.e. “The policy enables disabled people already assessed as LCW to enter or remain in education and better their prospects of obtaining work. The purpose is not to enable a person to be referred for a work capability assessment in order to determine whether they have LCW, so as to then satisfy the exception.” Fingers crossed I’m proved wrong but I am not optimistic.

We’ll have to see. However there is no justification, in my opinion, that because of a policy about whether or not students should be able to access UC somebody should be denied access to NI credits on grounds of LCW.

Hi folks,

Any recent intel on this from out in the world? Wearing my frontline (non-CPAG) hat I am finding it a challenge to get ESA to issue an ESA50 where there isn’t any entitlement for a 16 yo client of mine (at school, gets DLA). Alongside complaining about ESA dragging their feet, I am wondering if anyone has tried writing to the NI contributions office and asking to be credited for 2020-21 on the grounds of having LCW?

That seems to me to get around the fact that in terms of the Credits regulations NI credits cannot be awarded until the end to the tax year - which makes it hard to make a argument that DWP need to get on with a WCA now if no ESA entitlement will result anyway. But I suspect that they will just say that I have to ask DWP to do the WCA…

I have been told that the u18 adviser in the local Jobcentre can sometimes be some help with getting things unstuck. But I have phoned the number I was given by ESA every working day for a month now without the phone ever being picked up. But if anyone is in a similar situation and has contact with the u18 adviser in their area, that might be a tactic to try.

In slightly related news, I have a different client whose child (17, still at school, gets PIP) was awarded UC on a claim made after 5/8/20 before I met them in spite of explaining all of this information. Has anyone else seen this happening for people who are clearly still a QYP?

I am wondering if in this case there was actually enough information given in the UC claim to allow a determination of LCW to be made on the day the UC claim was made. However, the Regs require that the determination is made on or before the date of the UC claim, and that seems implausible (as it was an online claim). And they have also sent a UC50 out, which rather implies there has been no such determination.

Jon