ESA transfers to UC due to natural migration
We are in a full service area for UC, and are having problems with people who have been in receipt of ESA with a WRAC or support component, then are transferred to UC due to a change of circs eg moving address. All the guidance we have states that these elements should also be awarded with the new UC claim, and claimants would not need a new WCA (unless one is due). However local practice is to treat the UC claim as a completely new claim as far as limited capability for work goes, so these elements are not awarded, and claimants are not treated as having limited capability for work until they have undergone a new WCA.
We are also told by the DWP, that claimants cannot ask for a mandatory reconsideration as there has been no decision - despite the UC award letters giving MR/appeal rights.
We have contacted several people in the DWP locally and have quoted Reg 19 of the UC (Transitional Provisions) Regs 2014 but are having difficulty getting an official response.
CPAG also agree with us that these elements should be awarded.
Has anyone else in a full service area had these problems?
Has the DWP issued guidance on this?
I can’t seem to find any guidance on the need to respect LCW determinations for ESA claimants making a UC claim.
Reg 19 of the UC (Traqnsitional Provisions) Regs 2014 states quite clearly that this should be the case. I can’t find anything specific on gov.uk, except on the guidance notes of the ‘entitled to’ benefit programme which states that ‘If you move to UC from ESA and have already been assessed as having LCW, you will not have to undertake the assessment again. If you were in receipt of the WRAC you will be awarded the LCW element and if you were in receipt of the support component you will be awarded the LCWRA element’. We also contacted CPAG for guidance who confirmed this was correct and referred us again to the Regs as above.
Not sure if we are missing anything? Just need clarification from the DWP so that we can advise correctly, and wondered if anyone else had had this problem.
The commentary in Sweet and Maxwell for reg 19 is:
‘The purpose of this apparently complex provision is relatively simple. It provides that a claimant may be treated as having [LCW] or [LCWAWRA] for the purposes of an award of UC if they were previously entitled to the [relevant component] of ESA. If the claimant… was in the process of assessment…at the time the [ESA] award terminated, the assessment period for UC will be adjusted accordingly, under reg 20.’
DWP’s own Explanatory Notes on the Regs say:
7.14 Regulations in Chapter 3 also ensure the LCW or LCWRA elements of
UC can be applied to a UC award, with retrospective effect in most cases,
from the beginning of the assessment period where an ex-Incapacity Benefit
(IB), Severe Disablement Allowance (SDA), ESA or IS claimant makes or
joins a UC claim, based on:
• decisions resulting from a previous Work Capability Assessment (WCA)
or one undertaken when the claimant is in receipt of UC; or
• as a result of a set of criteria which uses receipt of certain components or
levels of other benefit [or] where claimants are receiving IB or SDA and are
approaching pension age
This UC guidance may help -
F5051 The guidance at F5030 [relevant period] does not apply where the claimant…. is entitled to ESA including the WRAC or support component….
So…if they cannot get something this ‘simple’ right, what other delights await us?
There surely is an MR available - as there has been a failure to apply Reg 19 properly and a decision to remove entitlement.
But I would complain like heck about this through formal channels and escalate it noisily; there is no provision for local variations, the Regs are clear.
Obviously agree with above, but as regards MR and whether a decision has been made surely it’s even more straightforward: UC has been awarded, how can it possibly be awarded without a decision? There is a right of MR/Appeal on the grounds that the UC award has been calculated incorrectly.
Thanks both, this all agrees with what we thought but is all useful evidence to support it thank you! Hopefully we will get someone in the dwp to respond as there have been several claimants (that we know about) affected by this.
Managed to find this in the DWP’s Transition to universal credit: DWP Advice for Decision Making (ADM)
“Chapter M - Universal Credit:Transition
... Chapter M6: Effects of transition to UC – Digital service area
… Claimant entitled to ESA component
Work–related activity component
1. an award of UC is made to a claimant who was entitled to old style ESA on the relevant date (see M6191)
2. before the relevant date, it had been determined that the claimant was
entitled to the WRAC and
3. the assessment phase had ended
the claimant is treated as having LCW without the need for the WCA.
We are in a full service area for UC, and are having problems with people who have been in receipt of ESA with a WRAC or support component, then are transferred to UC due to a change of circs eg moving address. ..
As a side-issue, a change of address is not in itself a trigger to claim UC, unless it means that you now need help with rent costs from a different local authority. Moving address within the same LA does not end your HB award.
Yes other Full Service areas are having same problems. Am advising people to raise via journal/helpline escalation process but also lodge MR. Have raised with DWP partnrership Mgr but no response.
You really have to chase up MRs. Have both paper and journal examples of them being simply ignored.
I’ll raise it via stakeholders too…
Seems like this could be a training issue for case managers. Just spoke to the helpline today about a case of this, and they are saying the award of the LCW/LCWRA has to go to a Decision Maker and is not something the Case Manager can just do on the basis of viewing the previous ESA award. In this case, the claim was made 2/3/17 and the issue was not sent to a decision maker until 5/5/17 when the client queried on her journal. It has now been ‘escalated as urgent’ by the helpline, which presumably just bumps it up the DMs inbox? So suggests was not sent to the DM by the case manager at the outset of the claim.
Helpline are also under the impression that each monthly award of UC does not represent a ‘decision’ which can be challenged by MR. They refused to deal with it as an MR, and say no ‘decision’ until looked at by DM.
We have raised this as an issue with stakeholders too and it’s been acknowledged that training needed to be given for those already deemed to have LCW or LCWRA however, we have been advised that it has to go to a decision maker because of the difference in UC/ESA regs.
So far, no one has been able to pin point exactly what regs they are referring to but inevitably this is causing delays in processing the correct payments.
I think the reason they’re not treating it as an MR is that it’s a processing delay.
I think any attempt by DWP to downplay this MR issue as a mere ‘Change of Circumstances’ is an attempt to avoid yet more humiliating defeats where DWP would likely lose 100% of cases at tribunal if clients were represented and not much less than 100% if they were not.
This isn’t just about DWP getting a point of law wrong. There are much bigger issues here and for me this is more about The Rt Hon Damian Green MP (SSWP) blatantly and wilfully ignoring both EU and domestic law with impunity.
Ken (Disability Rights UK) and I have just had a phone call with UC contacts via stakeholders. We stressed the seriousness of the problem - claimants missing out on large amounts of money, being sent for WCAs unnecessarily - and the urgency - rollout ramping up bigtime in July.
They do acknowledge it and are looking to -
- train up staff so they know the rules
- look at how the information is put on the system to make sure all relevant questions are asked
- look at how cases where it is currently wrong can be picked up
- draft information which can be distributed widely to raise awareness of the issue and how to get it rectified
They are aware of the urgency.
Will update when any news…
Hi yes this has been an issue for us since full service came in, we are still experiencing it now, entries on journals are being ignored, raising with JCP staff at manager level has had no effect, resulting in lengthy and timely complaints to local DWP resolution teams, customers with LCW on ESA being told to submit sick notes and receiving unnecessary UC50 when they have already been assessed as having LCW. We are finding UC treats everyone as a full time job seeker regardless of status until numerous complaints are made, causing extreme anxiety and poverty for many.
Currently feeling disgusted and angry about this issue. A client who has been waiting for this to be sorted since his UC claim in December and who is very vulnerable is still not being paid in accordance with his legal entitlements. I spotted it in March and logged it on Journal and have phoned a further twice. Formal complaint logged.
Infuriating that DWP are boasting about how ‘transformational’ UC is in terms of the ‘in work’ statistics when people too sick to work are just thrown under the bus.