Twofold SMI problem on UC

Client was working then stopped and claimed new style ESA in November, then UC in January. UC are saying that the period on NSESA cannot be used towards the SMI waiting period. Regs appear just to reference ‘employment and support allowance’.

Secondly, client got a very small amount of holiday pay, related to a period before her UC which UC have said will reset her waiting period.

Any views on either bit? I was wondering if the Johnson ruling will help the latter issue?

Thank you!

Problem 1 - DWP are correct. The qualification period for LMI is only elapsed during a claim for a legacy benefit which is defined as inclusive of irESA only.

Problem 2 - this is an interesting question which doesn’t have a clear answer. I raised it in a thread here a long time ago but I don’t think anyone has run with it as far as I am aware.

The LMI regs contain the following provisions:
(1) LMI cannot be offered where a claimant has earned income (reg 3(4))
(2) If in payment, LMI must be stopped where a claimant has earned income. (reg 9(3)(e))
(3) Where LMI is offered and accepted, it must be paid from the day after the end of the 9th AP (reg 8(1)(b))

Whilst DWP probably intended that receipt of earned income has the effect of “resetting” the clock for the purposes of LMI (this is how it works for UC service charges etc) - I find it difficult to read the regs as having that effect

Thank you very much Elliot. Do you have the regs for the first point?

Sorry I left it out deliberately because its messy.

Reg 21(5) covers the situation where the time spent on ESA counts partially towards the qualifying period which is what you are looking to do.

Reg 21(4) tells us:

Paragraph (5) applies where paragraph (1)(a) applies and…

Reg 21(1)(a) provides:

(a)an award of universal credit is made to a claimant who—
(i)was entitled to a legacy benefit (a “relevant award”) at any time during the period of one month ending with the day on which the claim for universal credit was made or treated as made (or would have been so entitled were it not for termination of that award by virtue of an order made under section 150(3) of the Welfare Reform Act 2012(1) or the effect of the Transitional Provisions Regulations (2)); or
(ii) [inapplicable];

Reg 2(1) defines “legacy benefit” as:

“legacy benefit” means income-related employment and support allowance, income support or income-based jobseeker’s allowance;