Student treated as eligible for LCW but only paid under 25 rate in first 91days (assessment phase)

Guest post from Aidan Gormley of GIPSIL Leeds:

A young person who, on turning 21, found he was no longer eligible for Income Support, but wished to continue receiving education. He is in receipt t of PIP and an SDP so a new claim had to be for ESA..
We had considerable difficulty getting a Med 3 Fit Note but proceeded on the grounds that he is not a qualifying young person receiving education and in receipt of PIP therefore treated as LCW immediately   ESA regs 33(2).

On accepting this DWP only paid the personal allowance at the lower rate of an under 25, £58.90, and will not increase this to the higher rate of £74.35 until 91 days have passed even though LCW is accepted.
I cannot work out how this can be; as at ESA regs. Schedule 4
SCHEDULE 4
AMOUNTS
PART 1
Prescribed amounts
[F11.  This paragraph applies to cases other than those falling within paragraphs 2 to 7 of Schedule 2 to the ESA and UC Regulations 2017.
................
(1) Single claimant—
(a) who satisfies the conditions set out in section 2(2) or 4(4) of the Act or who is a member of the work-related activity group; £74.35;

I have difficulty with the complexity of regulations and the cross referencing back and froth but i read that as stating that the higher rate is paid for one who is a member of the work-related activity group; in spite of the conditions concerning the assessment period…..

Can anyone direct my thoughts in the right direction, please?

im assuming that DWP logic behind this is that during the assessment phase (91 days) he technically doesnt have the LCW (although they have agreed to it) which would entitled him to the higher amount - its not until after those 91 days that he then has the LCW and this then entitles him to higher award?

my gut feeling is this might actually be right

hes not actually entitled to the LCW until the end of the assessment period therefore he is, until that point, just a 21 yr old making a claim so he wouldnt be paid the higher amount as hes not eligible at that point (im obviously ignoring the SDP as i assume thats in payment)

if im totally wrong and someone knows exact regulations ill hold my hands up but on my reading of them im siding with DWP (which i hate)

I think the legislation DWP will be relying on is The Social Security and Child Support (Decisions and Appeals) Regulations 1999, Reg. 6(2)(r)(ii) and Reg. 7(38).

Whether the above should apply if the “treated as having LCW” determination was made before a decision was made on the ESA claim is an interesting question, and probably worth appealing.

Thank you Charles, that was really helpful.
It took me some time to get my head around it but it would seem that :- 7(38) covers the issue and that I cannot progress it further..
Regulation 6(2)(r) specifies this particular instance in which LCW is awarded via ESA regs. 33()2) and 18.
Then 7(38) states: A decision made in accordance with regulation 6(2)(r) that embodies a determination that the claimant has—
(a)limited capability for work; or ................
which is the first such determination shall take effect from the day after the last day of the relevant period as defined in regulation 4(4) of the Employment and Support Allowance Regulations , i.e. the 92nd day.

Many thanks again.  Aidan