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UC/ESA
I’ve read through some of the relevant topics in the UC thread and just wanted to be sure of the following:
The claimant failed the WCA on 29 August 2017. He subsequently requested mandatory reconsideration - still waiting for outcome. He was also notified that his HB/CTR had been suspended and then on 4 October 2017 that entitlement has ended.
He has made a claim for UC in a Full Service Area - I’m not sure of the date of this claim but it would appear to have been in late September before the termination of his HB/CTR award.
He then came in to see us to get advice.
As the claimant has now made a UC claim in a Full Service area then is it correct to say that he cannot now return to any of the legacy benefits regardless of the outcome of his ESA appeal on the WCA?
Yes - from date of UC claim cannot get legacy benefits (with the exceptions about HB in specified accommodation of course). Although if wins ESA appeal that can be awarded up to the date UC awarded from and UC award will need to be revised to include the LCW or LCWRA element from start of award.
Need to check why HB suspended - up until UC awarded he should have been entitled although they may have needed further info about his circumstances to determine rate of entitlement from date ESA stopped. They should of asked for this and he should have provided it. May need to challenge HB decision for period between start of suspension and UC award.
Check also that UC didn’t apply 7 day waiting period at start of claim - shouldn’t apply in these circumstances as was entitled to housing benefit and/or income-related ESA within the month before claimed. However, we’ve heard of cases where 7 day waiting period has been applied in such circumstances.
As the claimant has now made a UC claim in a Full Service area then is it correct to say that he cannot now return to any of the legacy benefits regardless of the outcome of his ESA appeal on the WCA?
It’s arguable that he could withdraw the UC claim before it is decided: I think this would that he effectively never claimed UC. Once the UC claim is decided then in theory yes, that’s it for legacy benefits. But I know that in practice where the ESA MR or appeal is successful, DWP often acts as if the UC claim had never happened and reinstates ESA going forward, even where UC has been paid. What should happen is that ESA still ends immediately before UC was claimed but UC inherits LCW/LCWRA status from the ESA award. However, if they are simply putting them back on ESA, that makes things messy at the HB end. The common sense outcome, which I am not sure is fully compliant with the law, is that the decision ending HB is revised. The Council can square this with the Regs by saying that DWP’s actions have made it as though there never was a UC claim at all.
In the particular case you mention, the Council have not helped by proactively stopping the claimant’s HB. They should not do this. Sure, they are going to suspend HB when they hear that ESA has stopped because at that stage for all the Council knows the claimant has won the lottery or been appointed CEO of a multinational corporation. But as soon as the Council knows that the claimant has merely failed a WCA and not come into some money, they should reinstate HB if the claimant has not yet claimed UC. By stopping HB they are adding to the pressure on people in this situation to claim UC when that might not be their best option: those who are in a position to “tough it out” during the ESA MR stage have every right do so. They might end up on a higher rate of benefit with ESA reinstated than they would have got on UC (rule of thumb: severe disability premium cases). There is a risk: they lose the MR/appeal and have missed out on UC in the meantime. But its their choice and they have the right.
There is a risk: they lose the MR/appeal and have missed out on UC in the meantime. But its their choice and they have the right.
I’m not sure about this - if they lose the MR then as soon as they lodge the appeal ESA would be reinstated from when it stopped wouldn’t it and would be paid up to the outcome of the appeal. If they they lost they would need to claim UC but I don’t think would have lost out in the interim?
Thanks for all of your informative replies.
Much to dwell on before determining how to go forward
There is a risk: they lose the MR/appeal and have missed out on UC in the meantime. But its their choice and they have the right.
I’m not sure about this - if they lose the MR then as soon as they lodge the appeal ESA would be reinstated from when it stopped wouldn’t it and would be paid up to the outcome of the appeal. If they they lost they would need to claim UC but I don’t think would have lost out in the interim?
Yes, of course that’s right. Sorry.
Further to my previous posts in this thread and following on from them this may sound like a stupid question but how does one know when a UC claim has been ‘decided’.
I have had difficulty with contact with my client but hope to be able to check the UC on-line account with him today and so long as no decision has been made then we will go ahead and withdraw the claim. Presumably this is also done on-line?
See Cl for the first time this morning – Cl lives in full service area.
Cl part of a couple, was receiving contribution based ESA, in Support Group. Partner is 67 and has Pensions of approximately £230.00 p/w – also have other income of £250.00 per month (lodger).
Cl failed WCA, 0 points – submitted MR. HB stopped. Cl went to DWP was told she has to make a claim for UC, which she did. UC claim came back nil award due to income being too high. Cl then advised by DWP staff to make a new claim for HB, which they have done. Cl is still being asked to attend a WCA for UC - Cl has come to us for the first time today to appeal ESA MR Decision.
I am thoroughly confused - Shouldn’t of housing costs been calculated with the UC claim? If UC has already been claimed and decided, can Cl make a new claim for HB? If Cl wins appeal and is placed in SG, will ESA (CB) be reinstated?
I have a headache! Can anyone help?
As partner over PC age they can still claim HB (think partner should be claimant). Can also claim PC rather than UC. If wins ESA appeal then that would be income again.
hkrishna - Thank you,! I did think about the PC route, but think income is too high. Do you know if the Cl should still attend the WCA for UC, even though there is an ESA Appeal outstanding?
Many thanks for your reply.
If income is too much for PC, is it low enough for them to get UC with housing costs? Or would it be better to stop the UC claim and for the older partner to claim HB?
Was the original award of cont ESA an ‘old style’ award?
If so, & assuming the client continues with UC, the UC(TP) regs allow an old style ESA determination to be taken into account - reg 19 I think - so the LCWRA element could be included, for example.
But pending the appeal, there is nothing to stop a further assessment from being carried out under reg 41 of the UC regs. That’s because the reg only refers to previous assessments within UC or new style ESA, and there haven’t been any here.
A determination following another WCA would have a later date than the effective date of the decision under appeal & so it would supersede it. In other words, if I’ve understood it correctly & the client was on old style ESA, they could win their appeal but still find that a negative determination from a subsequent WCA carried out as part of their UC claim took effect from a later date.
Hope this makes sense & I’ve understood the situation…
If those figures are the only income there is then there should be an entitlement of about £12.60 a week Savings Pension Credit but no Guarantee Pension Credit, without considering any WCA. No UC entitlement without a WCA.
[ Edited: 1 Nov 2017 at 04:35 pm by Gareth Morgan ]If those figures are the only income there is then there should an entitlement of about £12.60 a week Savings Pension Credit but no Guarantee Pension Credit, without considering any WCA. No UC entitlement without a WCA.
Saving Credit PC claim contingent on the age that they reached qualifying age of course also.
Saving Credit PC claim contingent on the age that they reached qualifying age of course also.
Yep, but o/p says partner is 67.
If income is too much for PC, is it low enough for them to get UC with housing costs? Or would it be better to stop the UC claim and for the older partner to claim HB?
Was the original award of cont ESA an ‘old style’ award?If so, & assuming the client continues with UC, the UC(TP) regs allow an old style ESA determination to be taken into account - reg 19 I think - so the LCWRA element could be included, for example.
But pending the appeal, there is nothing to stop a further assessment from being carried out under reg 41 of the UC regs. That’s because the reg only refers to previous assessments within UC or new style ESA, and there haven’t been any here.
A determination following another WCA would have a later date than the effective date of the decision under appeal & so it would supersede it. In other words, if I’ve understood it correctly & the client was on old style ESA, they could win their appeal but still find that a negative determination from a subsequent WCA carried out as part of their UC claim took effect from a later date.
Hope this makes sense & I’ve understood the situation…
Thanks WillH, wow - why do they make these things so complicated!? I think it makes sense! This maybe why he was advised to make another HB claim. What a palava though. Advised to make UC, so HB stopped, nil award of UC, so now has to reclaim HB!! Surely this could have been checked before advising the Cl to make a UC claim avoiding all the stress! I advised Cl to make a claim for CA (underlying entitlement) and PC as his partner receiving PIP (daily living). Hopefully, this will resolve the mess they’re currently in - whilst appeal is being decided. Many thanks for your help and time :)
Many thanks for all your informative replies - all have been a great help! 😊