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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

ESA or UC in full service area

slaw
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Macmillan benefits advice team - Oldham CAB

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Total Posts: 88

Joined: 10 August 2010

We have a client who has 3 children and had been receiving irESA, CTC and HB.  Her partner joined her household in April this year.  Her partner had been receiving UC since December 2016.  The partner was initially advised (by UC we think) to end her UC claim and ‘join’ our client’s ESA claim because of the rules regarding 3 or more children.  ESA are refusing to do this and are saying that our client has to claim UC with her partner regardless of having 3 children.  ESA have ended our client’s claim.

To confuse things further our area (Oldham) became UC full service on 26/04/2017 and it is around this time when the partner joined our client’s household.  We cannot as yet confirm the exact date but we are unsure whether this would make any difference anyway.

Are ESA correct?  We suspect they might be because the partner has had a UC claim within the last 6 months, but we really aren’t sure and cannot find any information about this.  Can anyone help?

[ Edited: 18 Aug 2017 at 04:45 pm by slaw ]
Sally63
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Generalist Adviser, Southwark Citizens Advice Bureau

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Joined: 21 January 2016

Current CPAG welbens pg 259 says ” If you get UC and a third or subsequent child born before April 6th 2017 becomes part of your claim (eg child of a new partner) you can get a child element for him/her if you have at least two other children born before that date for whom you and your partner are already responsible”.

That doesn’t sound like an exact description of your situation but close-ish. Maybe.
There’s more humming and harrumphing on the same page so something like that sounds like the theory

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Joined: 12 March 2013

Article 4(2)(c) of the WRA 2012 No 9 Commencement Order says that ESA(ir) is abolished when a single person on UC forms a couple with a legacy benefit claimant; and Reg 9(8) of the Claims and Payments Regs says the couple are treated as having claimed UC in such circumstances.  The wording of Reg 9(8) is slightly different for live and full service respectively, but for this particular combo (single UC claimant shacks up with single legacy claimant) the effect seems to be the same either way.  That would suggest that UC “trumps” ESA, and the exact timing (before or after 26 April) doesn’t matter.

But Reg 39 of the UC Transitional Provisions Regs prevents people with more than two children from making a claim for UC.  Does this include people who are treated as making a claim?  I would think not: I would say this couple should get UC rather than legacy benefits.  But they seem to be transitionally protected under TP Reg 40 as they have three children all born before 6/4/2017.

In summary, I think they should get UC with three child allowances - and LCW carried over for good measure of course.