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

ESA transfers to UC due to natural migration

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Daphne
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I am in discussion with cpag about whether it might be possible to do a legal challenge (JR?) on this issue - will keep updated…

Daphne
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Carla Clarke - the legal officer at CPAG - is happy to try a pre-action letter on a case with a view, once response is received, to see whether it is pursuable to a full judicial review.

She needs a client though who has been affected by this - requirement to go through a WCA and non-payment of relevant element - within the last three months (and ideally London based to come in and sign legal aid forms but can be from outside if needs be).

If you have someone please fill out the CPAG test case referral form

HFCAB
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We were told at a meeting with our local job centre today that the DWP had only last week (June 21st) sorted out the problem of ESA transfers to UC due to natural migration. We’re in a full service UC area and we’ve had lots of ESA clients with delays of months before being placed in the correct UC group/insistence on UC50s and WCA/  being treated as available to work despite transferring from support group of ESA .
We were assured today that the UC system is now set up to allow the transfer to UC of the ESA award without a Decision Maker having to look at it , as long as the client indicates in the UC application that they are too sick to work and confirms they were receiving ESA at the first work coach meeting. The correct sickness elements should be part of the first UC payment.
Nothing in writing yet but we’ll monitor the next round of ESA to UC applications closely.

Jon (CHDCA)
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We were assured today that the UC system is now set up to allow the transfer to UC of the ESA award without a Decision Maker having to look at it , as long as the client indicates in the UC application that they are too sick to work and confirms they were receiving ESA at the first work coach meeting. The correct sickness elements should be part of the first UC payment.

Ok, but what if they’re too sick to realise that DWP’s left hand won’t know what its right hand is doing? DWP obviously needs “prompting and supervision” in this area, but I’m not sure why the onus should be placed on the claimant for any of this. (Yes, I saw another example of this today, and yes it annoyed me).

It probably doesn’t help that the example in the ADM at M6193 to explain the retention of the work component on transfer, is of someone who is also a carer. They are therefore an exception to the general rule, because both elements are not payable under UC: “Their award includes the carer element, but not the LCW element, which would otherwise have been payable.” I would have to try quite hard to come up with a more confusing way to illustrate for DMs the general rule that people with LCW under ESA should get the LCW element upon moving to UC.

edit to add:
We have seen more than one case where someone receiving c-ESA in the Support Group goes to claim UC, and the full amount of ESA they are receiving (£109pw) is counted as income, against a UC applicable amount which does not include the LCWRA element. They are then sent a UC50, and threatened with sanctions if they don’t agree a claimant commitment - all despite being (as far as legacy benefits are concerned) in the Support Group.

[ Edited: 3 Jul 2017 at 05:30 pm by Jon (CHDCA) ]
Andrew Dutton
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I have today been told by DWP , yet again, that a claimant who is transferred to UC through natural migration from WRAG ESA will have to present a sick note at their first JC+ meeting and will have to go through the WCA before LCW can be awarded.

[miscellaneous noises of frustration and rage]

Dan Manville
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Andrew… You inbox is full!

Daphne
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I am chasing UC (again!) on this…

Dan Manville
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https://www.whatdotheyknow.com/request/information_transfer_on_universa

Looking at the response to my FOI on this it looks like UC aren’t even asking what group an ESA claimant should be in…

Rosie W
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But they really want to know about sanctions..

Jon (CHDCA)
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Should we assume from this that there is no mechanism for UC to take account of a DS1500 held by ESA?

Dan Manville
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Rosie W - 01 September 2017 10:12 AM

But they really want to know about sanctions..


Hmmmm….

Jon (CHDCA) - 01 September 2017 11:24 AM

Should we assume from this that there is no mechanism for UC to take account of a DS1500 held by ESA?

Yes; I think it’s safe to say that if they’re not asking about group placement then they’ve completely forgotten to check whether someone’s terminally ill.

As an aside, I was looking through the UCFS guidance on here and “vulnerable” appears not once.


edit; They gave more information to Work Programme Providers than they pass on to UC and look how that turned out!

[ Edited: 1 Sep 2017 at 02:26 pm by Dan Manville ]
HFCAB
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Our client was in the support group of ESA. He had to claim UC at the beginning of the year when he moved into new accommodation in our full UC service borough - no change in his health, no failed WCA, simply had to claim UC not HB. Since then he has been paid Standard Allowance only in his UC award . We put a note in his UC journal querying why Regulation 19 of the UC (Transitional Provisions) Regulations 2014 hadn’t been applied to our client’s award.  The attached letter was posted on his journal in response:  “The decision to award you the Support Group of ESA was made under ESA Regulations 2008. However Universal Credit regulations 2013 do not allow a decision made under the 2008 ESA regulations to be transferred onto a Universal Credit claim”.
The client has been waiting for a health assessment since January.
Thoughts please…

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Elliot Kent
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HFCAB - 02 September 2017 02:46 PM

Thoughts please…

Well it’s straightforwardly wrong.

True, there is no reference to the 2008 ESA regs in the 2013 UC regs, but you weren’t talking about the UC regs - you were talking about the TP regs which explicitly refer to “old-style ESA” (i.e. ESA under the 2008 regs).

Also, it looks to be a decision letter which fails to include “a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.” and therefore your client may choose to appeal against it directly to the Tribunal without going through MR.

[ Edited: 2 Sep 2017 at 03:20 pm by Elliot Kent ]
Gail Knight
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HFCAB - 02 September 2017 02:46 PM

Our client was in the support group of ESA. He had to claim UC at the beginning of the year when he moved into new accommodation in our full UC service borough - no change in his health, no failed WCA, simply had to claim UC not HB. Since then he has been paid Standard Allowance only in his UC award . We put a note in his UC journal querying why Regulation 19 of the UC (Transitional Provisions) Regulations 2014 hadn’t been applied to our client’s award.  The attached letter was posted on his journal in response:  “The decision to award you the Support Group of ESA was made under ESA Regulations 2008. However Universal Credit regulations 2013 do not allow a decision made under the 2008 ESA regulations to be transferred onto a Universal Credit claim”.
The client has been waiting for a health assessment since January.
Thoughts please…

And yet this letter my client received after successful ESA appeal (he claimed UC pending outcome) totally goes against the one you have received

 

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Jon (CHDCA)
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We’ve seen a similar letter to Gail’s. It’s worth noting that page 2 of our letter does include the standard info saying if you disagree then you have to go through an MR before appealing. I would guess that page 2 of HFCAB’s letter might do likewise? If so, then you wouldn’t normally be able to appeal directly as Elliot suggested.

(That said, there may be an argument that your note querying entitlement should have been taken as an MR request against the original awarding decision, and this letter should stand as the MR Notice itself. I don’t know whether HMCTS would buy that or not).