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NI credits ESA , does this help UC claim
My client has a son who is disabled and gets PIP enhanced and NI credits for ESA , he was assessed as support group level for ESA . he won’t get any esa payment as he has not paid nI, however if the son claims UC will he have to have another WCA assessment for UC or can his ESA assessment qualify him for UC at the LCWRA level. He is in education now but will be stopping in September, [ though might go onto another course at that time]
this is the son , who proposes to claim UC , parents will not be claiming any benefits
Hello
This should help hopefully:
In short, ongoing credits for LCWRA (even where no ESA is in payment) should lead to immediate entitlement to LCWRA element on UC. The relevant regs etc are referred to in the decision and the RN summary. The SoS’s rep agreed that this was the case.
Cheers
Alex
Thank you Alex
Hello,
This is related but a slightly different situation, can anyone advise?
Client claimed NS ESA last Autumn, is credits-only as never paid NI (disabled 19-year-old with PIP). ESA referred him for a WCA which didn’t happen yet, then he claimed UC in March 2022. ESA then close his claim in April, and we only find this out now because we ring up CHDA and ESA to find out what’s happening.
ESA say - we closed his ESA claim because it was nil payment and UC will take over the NI credits. Is this right?
I only ask because now he has to go to the ‘back of the queue’ re: getting WCA, and he’ll have to badger UC to refer him for one as they have not done this yet even though med certs have been submitted to UC since the start of his claim in March.
TIA
Hello,
This is related but a slightly different situation, can anyone advise?
Client claimed NS ESA last Autumn, is credits-only as never paid NI (disabled 19-year-old with PIP). ESA referred him for a WCA which didn’t happen yet, then he claimed UC in March 2022. ESA then close his claim in April, and we only find this out now because we ring up CHDA and ESA to find out what’s happening.
ESA say - we closed his ESA claim because it was nil payment and UC will take over the NI credits. Is this right?
I only ask because now he has to go to the ‘back of the queue’ re: getting WCA, and he’ll have to badger UC to refer him for one as they have not done this yet even though med certs have been submitted to UC since the start of his claim in March.
TIA
I think the problem is reg 8B(2A) of the credits regs - you can’t get credits if you’re not entitled to ESA & you are entitled to UC.
https://www.legislation.gov.uk/uksi/1975/556/regulation/8B
However, if ESA have not yet assessed him I think it is worth checking what happened to his entitlement to credits between autumn 21 & March 22? I doubt you’ll be able to see from HMRC whether he has been credited for this period yet, as it’s too recent. I’d hope that he can be credited for this period because he was submitting med certs, so he could be ‘treated as’ having LCW for the purposes of ESA, and I think that must be sufficient to meet reg 8B(2).
As regards the going to the back of the queue, you might then need to argue with UC about the ‘relevant period’ in reg 28 UC Regs (ie if the client is found to have LCWRA, argue that the ‘relevant period’ has already been served). You could try reg 21(7) of the UC(TP) Regs for that:
‘(7) Where, on the relevant date, the notional assessment phase in relation to the claimant applied and had not ended and had lasted for more than 13 weeks—
(a)regulation 28 of the Universal Credit Regulations does not apply;
(c)if it is subsequently determined in accordance with Part 5 of those Regulations that the claimant has limited capability for work and work-related activity, the LCWRA element is (subject to the provisions of Part 4 of those Regulations) to be included in the award of universal credit with effect from the beginning of the first assessment period.’
There is some doubt about whether the TP Regs cover new style ESA credits only claims. I think it’s arguable but definitely not clear. I would read all the references to ‘if the client was entitled to old style ESA’ as sufficiently wide to include cases where it is no longer possible to claim it, but that’s because I want this to work!
I also think that reg 21(9)(b) UC(TP) Regs is helpful:
‘b)the fact that a notional assessment phase applied in relation to a claimant on the relevant date is to be taken into account even if the claimant subsequently ceased to be entitled as mentioned in paragraph (1)(a) before that date because the claimant became entitled to universal credit.’ Although I can’t see how that would apply unless UC entitlement is backdated to before the date of claim, it is more evidence that the point of these provisions is that you shouldn’t lose out where your ‘notional assessment phase’ has already started & then you stop being entitled to credits due to UC. And if the SSWP intended that protection to only apply in old style credits only claims I’m not sure that is achieved, & if it is achieved, would wonder if that’s challengeable (obviously a bigger question about rationality/discrimination against later claimants).
To put it another way, I think hassling UC to get the WCA done is something you have to go about in the usual way, emphasizing that the client has already waited during the credits only claim, escalating, even using a pre-action letter if you need to. But getting the LCWRA element backdated if the client ends up with an LCWRA determination is a separate issue & maybe worth trying?
[ Edited: 13 Jul 2022 at 01:53 pm by WillH ]Very comprehensive reply - thanks!