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Forum Home  →  Discussion  →  Universal credit administration  →  Thread

WCA in UC pending ESA appeal

Nicola Kimber
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WBO - Swan Housing, Essex

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Hi,

I was wondering if anyone had come across the following and may be able to advise.

Claimant was claiming ESA and has failed the medical assessment. An appeal has been lodged and we are awaiting the date.
She has subsequently claimed Universal Credit - is she able to request a WCA under UC despite failing the ESA medical? Does she need to have a new or significantly worse condition as was necessary to make a new ESA claim?

Thanks in advance.

Daphne
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Reg 41(4) of the UC Regs provides -

(4) If it has previously been determined on the basis of an assessment under this
Part or under Part 4 or 5 of the ESA Regulations that the claimant does not have
limited capability for work, no further assessment is to be carried out unless there is
evidence to suggest that–
(a) the determination was made in ignorance of, or was based on a mistake as to,
some material fact; or
(b) there has been a relevant change of circumstances in relation to the claimant’s
physical or mental condition.

so there has to be a relevant change.

However, does your client want to be on UC? If she doesn’t and hasn’t yet had payment she could withdraw claim and ESA would be put back in payment now she is pending appeal. Even if UC has been paid, if she is in a live service area she may be able to withdraw her claim and go back to ESA tho she should be careful about when to withdraw the claim - generally best is just after a payment.

[ Edited: 13 Jun 2017 at 04:22 pm by Daphne ]
Elliot Kent
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Shelter

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Daphne - 13 June 2017 04:19 PM

Reg 41(4) of the UC Regs provides -

(4) If it has previously been determined on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations that the claimant does not have limited capability for work, no further assessment is to be carried out unless there is evidence to suggest that–
(a) the determination was made in ignorance of, or was based on a mistake as to, some material fact; or
(b) there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition.

so there has to be a relevant change.

That was my reading at first, but someone clever on the forum pointed out that under reg 2 of the UC regs, “ESA Regulations” is defined as referring only to the ESA Regulations 2013 (and therefore only claims for new-style ESA).

So the position seems to be that if a claimant has only been found fit for work under old-style ESA under the 2008 regs (which would be the majority of cases at the moment) , they can ask for a WCA on UC without any need for a change in circs.

Daphne
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Oh clever! Thanks for that :)