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Legacy ESA and claiming UC

 

Ianb
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When a claim for UC is made I know this ends entitlement to an existing award of IB-ESA. Given that legacy ESA is a hybrid benefit with a contribution based component and an income based component with different qualifying rules I am not clear whether this means that a claim for UC ends the whole of an existing ESA claim or only the income based part. If the latter, a CB-ESA award would continue and presumably an ESA award which is CB topped up with IB would have to be revised so that only the CB component carries on in payment.

If anyone knows the answer and can direct me to guidance or regulations that spell it out I would be grateful.

     
Daphne
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I’m not completely sure of the answer here but I thought if I put something it would bump it to the top and invite others to contribute! My understanding is that only irESA is stopped by a UC claim and that therefore contributory ESA would continue (reg 4 of the relevant commencement order only abolishes the income-related version). I agree with you that that would mean the ESA decision is revised to end the irESA - does that then mean the contributory ESA left in place counts as new-style ESA (which is basically the same as contributory ESA)?

     
HB Anorak
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I think ESA(c) continues as a “new style” award under Article 10 of the No 9 Order, which applies by virtue of, for example, Article 6 of the No 24 Order or Article 5 of the No 22 Order … or the equivalent Article of whatever commencement order applies locally.  But my word, the No 9 Order is a fiendishly complicated piece of work and I could very easily have overlooked some complexity that makes what I have said completely wrong!

     
Ianb
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Macmillan benefits team, Citizens Advice Bristol

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Thanks for the bump Daphne - I was thinking about doing that myself!

Was hoping that someone might have a client who had actually experienced this and would therefore know what has happened.

Even if the old C-ESA part ‘converts’ to ns-ESA without the need for a new application (which is certainly what I would hope) my understanding is that ns-ESA has a claimant commitment which the old benefit doesn’t have so there is going to have to be some interaction between the DWP and the claimant in order to make the switch happen.

     
Andrew Dutton
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I too need help to understand this.
Using http://www.legislation.gov.uk/uksi/2013/983/contents/made
So – say the amending provisions have come in, with (4) amending away IRESA.
– and then in (10):
‘the person in question had an old style ESA award immediately before the appointed day, which consisted of or included a contributory employment and support allowance (which allowance therefore continues as a new style ESA award)’
The rest of (10) then goes on to make sure that the 2013 ESA Regs can be read in the light of its provisions and carries forward from the previous claim LCW/LCWRA, treated as LCW/LCWRA or assessment period served. 

I think.
Is that anywhere near right?
The fact that the old ESA ‘continues as a new style ESA award’ does imply that sooner or later it’s Claimant Commitment time, etc etc.

     
HB Anorak
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Yes, having thought more about this (and consulted someone who specialises in painstaking line-by-line analysis of the source material)  I have come to the conclusion that there is nothing anywhere that expressly says “you do not lose your ESA(c) upon claiming UC” - because there doesn’t need to be.  There is nothing to say you do lose it, so you don’t.

New style ESA is not a freestanding thing, distinct from any other kind of ESA.  It is the same old ESA, but subject to the new style regs rather than the old-style regs and minus any integral means-tested top-up.  It is actually Article 7 that activates new-style conditionality - I think Article 10 is more of a consequential technical provision.

So when the dust settles, an undisturbed award of ESA(c) remains in place but now subject to new-style features.