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

Disabled student and credits only ESA claim question

CA Adviser
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Citizens Advice Calderdale, West Yorkshire

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Cl is a disabled 19 year old who turns 20 next month. He is in FT non-advanced education in life skills. His appointee has started a credits only ESA claim for him as per the advice in the Contact.org. factsheet:
https://contact.org.uk/help-for-families/information-advice-services/benefits-financial-help/benefits-and-tax-credits/universal-credit/universal-credit-for-young-people/
When he turns 20 and ceases to be a qualifying young person he can make a UC claim. It would seem that he should not be treated as ‘receiving education’ and so the UC claim should be accepted.
Assuming the credits-only ESA claim stands and a WCA is carried out for ESA, when would the LCWRA element (if awarded) be included in the UC claim from? Would it be the AP following the start of the 14th week of the ESA credits-only claim?
Thanks

bristol_1
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WRAMAS Bristol City Council

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Hi CA

I don’t have a firm answer for your question but I’m following with interest as I’m advising the parent of someone in a similar situation. In my case, the parent claims UC and the son has stopped being a QYP as they’ve reached 01/09 after their 19th birthday, so they can claim UC.

I think that I should advise the son to claim UC after the 14th week of the ESA credits only claim, assuming the UC claim will be refused initially as there is no LCW/RA (yet), but then to go back and ask for a revision of the UC decision after the WCA decision.

Once the WCA decision is made, I think that the LCW/RA will be awarded from the 14th week of the ESA claim and with this being prior to the date of the UC claim, the LCW/RA element should be included from the start of the UC claim.

For this I am relying on Regulation 40 (1) (a) (ii) of the UC Regs 2013 which confirms that an LCWRA element is to be included where it has been determined that the claimant has a limited capability for work and work-related activity either under the Universal Credit regulations or under the ESA regulations. 

Does anyone have a view on this?

Charles
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Reg 40 does not mean that the element will be included from the start of the UC claim, as it does not disapply Reg 28.

However, Reg 21 of the UC(TP) Regs 2014 should enable the LCWRA element to be included from the start of the UC claim.

bristol_1
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WRAMAS Bristol City Council

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Thanks Charles.
& reading that in conjuction with the new nasty regs (The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020), according to Reg 2 (b) of those regs then the UC claim must actually be made after the decision date of LCW, rather than the date from which LCW applies.

Another possibility I’d overlooked is actually that my client is not ‘receiving education’ as defined in UC Regs 12b. My client is no longer a QYP and does not receive a loan or grant (though mum says will apply for bursary, so that would negate that point ...)

Vaux
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The young person may no longer be a qualifying young person but that does not automatically mean that they can be treated as not receiving education. See https://askcpag.org.uk/?id=205705.

They have to show that the education they receive is not incompatible with their work-related requirements.

Incidentally, if the mother is referring to the 16-19 year old bursary, that isn’t a payment for maintenance so doesn’t drag him back into the definition of receiving education.

bristol_1
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WRAMAS Bristol City Council

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Thanks Gary - I think he will be regarded as in education as the course would be incompatible with all-WRR, which is what he would initially have when applying to UC (as no LCW/RA status yet).

So ... I just thought of another problem (headache!) with this claim. CB has different rules so continues in payment until age 20; next April for this person. Does the parent of the young person now have to ring up and close the CB claim in order for the credits-only NS ESA claim to succeed?
(As CB is less pcm than UC, it is financially advantageous to pursue the NSESA/UC claim)
If the process is complicated for advisers, I really feel for the claimants and parents!

Vonny
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bristol_1 - 17 September 2021 12:32 PM

Thanks Gary - I think he will be regarded as in education as the course would be incompatible with all-WRR, which is what he would initially have when applying to UC (as no LCW/RA status yet).

So ... I just thought of another problem (headache!) with this claim. CB has different rules so continues in payment until age 20; next April for this person. Does the parent of the young person now have to ring up and close the CB claim in order for the credits-only NS ESA claim to succeed?
(As CB is less pcm than UC, it is financially advantageous to pursue the NSESA/UC claim)
If the process is complicated for advisers, I really feel for the claimants and parents!

It would not necessarily be incompatible with their WRR, which although would be all WRR, due to their disability they may have reduced requirements at the discretion of their work coach that can be met whilst still continuing with the course and therefore would not be receiving education

CA Adviser
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Citizens Advice Calderdale, West Yorkshire

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V helpful factsheet here
https://contact.org.uk/wp-content/uploads/2021/03/universal_credit_young_person.pdf
States that as no payment of NS ESA is made, a claim does not interfere with payment of child benefit.