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

nsESA credits only claim

 

CAAdviser
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Two questions:

- Has anyone successfully made an nsESA credits-only claim (ie where the cl has not paid enough NI conts to qualify)?

- Would the WCA completed as part of the claim, transfer over to UC in the same way as it would if it were a standard nsESA claim, so that the Work Capability Element could be applied from the start of the claim? - Assuming of course, that the UC claim was made after the WCA was complete and cl was deemed to have a LCWRA.

Many thanks!

     
Ianb
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Previously discussed here https://www.rightsnet.org.uk/forums/viewthread/13203/
Unfortunately it didn’t arrive at a clear conclusion!

     
CAAdviser
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Hi Thanks for replying.  Yes I saw that thread but:
1. thought someone may have tried it since August
2. It doesn’t seem, to cover my second question re the WCA?  However, laying in bed this morning I had a thought about this (yes I am that sad! ;-)) and have looked again at DRH and I don’t think it is just the decision itself that is important here as DRH says uses the phrase “you are entitled to cont ESA….that includes the….support component”.  If this wording comes from the regs then what seems to be important is actual receipt of the component not that a decision has been reached that a claimant has a LCWRA.
If I have understood the above correctly then I think I have answered by own question but would welcome comments…
Thanks!

     
Elliot Kent
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Yes I have at least one client getting credits. He was out of the UK for a very long time and claimed UC and nsESA on his return. Both refused (HRT and lack of contributions) but he is being put through the WCA for credits purposes. Pretty much just as under the old system.

As to the second part of the question, I suspect that they would be entitled to the LCWRA element from day one as a result of reg 21 of the Universal Credit (Transitional Provisions) Regs 2014.

     
Ianb
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Elliot Kent - 14 October 2018 03:49 PM

Yes I have at least one client getting credits. He was out of the UK for a very long time and claimed UC and nsESA on his return. Both refused (HRT and lack of contributions) but he is being put through the WCA for credits purposes. Pretty much just as under the old system.

As to the second part of the question, I suspect that they would be entitled to the LCWRA element from day one as a result of reg 21 of the Universal Credit (Transitional Provisions) Regs 2014.

Would be interested to know, when your client has a determination, whether they are getting the credits through ESA or UC. If the former I assume they will be Class 1 Credits, if the latter Class 3.

     
Ianb
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CAAdviser - 14 October 2018 12:41 PM

Hi Thanks for replying.  Yes I saw that thread but:
1. thought someone may have tried it since August
2. It doesn’t seem, to cover my second question re the WCA?  However, laying in bed this morning I had a thought about this (yes I am that sad! ;-)) and have looked again at DRH and I don’t think it is just the decision itself that is important here as DRH says uses the phrase “you are entitled to cont ESA….that includes the….support component”.  If this wording comes from the regs then what seems to be important is actual receipt of the component not that a decision has been reached that a claimant has a LCWRA.
If I have understood the above correctly then I think I have answered by own question but would welcome comments…
Thanks!

1. When I saw your post I hoped you would get a response from someone who had experience the too - just thought you might not have seen the earlier thread.

2. The ADM simply says results of a WCA can be carried over, no reference to whether benefit in payment.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/661575/admg1.pdf

G1005 A UC claimant may already have been assessed for LCW and LCWRA for the purposes of ESA. Where
1. it has been determined that the claimant has LCW or LCWRA following an assessment under ESA legislation and
2. a claim for UC is made while the determination in 1. is current
the claimant does not have to undergo a separate WCA for the purposes of UC2.

     
Elliot Kent
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They are getting class one credits for incapacity which are being dealt with by the ESA department. You only get the class three credits if you are entitled to UC and this client isn’t (or at least the DWP say he isn’t, but that’s another matter).

     
Ken Butler
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On decision letters that award someone LCW or LCWRA on a credits only basis is it clear when their LCW or LCWRA status dates from?

Is it given as the date of their claim for NSESA?

     
CAAdviser
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I checked this against the UC regs themselves and they mirror DRH - the component has to be in payment…

Period for which the LCW or LCWRA element is not to be included
28.—(1) An award of universal credit is not to include the LCW or LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.
...
(5) Paragraph (1) also does not apply if—
...
(b)the claimant—
(i)is entitled to an employment and support allowance that includes the support component or the work-related activity component, or

     
Elliot Kent
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CAAdviser - 18 October 2018 10:23 PM

I checked this against the UC regs themselves and they mirror DRH - the component has to be in payment…

As I vaguely mentioned above, reg 28 is subject to reg 21 of the Universal Credit (Transitional Provisions) Regulations 2014. Reg 21 provides that in a credits only case where an individual has been assessed as LCWRA as at the “relevant date” - i.e. the date of their UC claim:

(a) regulation 28 of the Universal Credit Regulations does not apply; and
(b) the LCWRA element is (subject to the provisions of Part 4 of the Universal Credit Regulations) to be included in the award of universal credit with effect from the beginning of the first assessment period

I don’t see why that provision wouldn’t apply to someone who had made a claim for credits in a full service area but only became entitled to UC at some later date so as to make the LCWRA element payable from day one of the claim. Of course, I could be wrong about that.

http://www.legislation.gov.uk/uksi/2014/1230/pdfs/uksi_20141230_310818_en.pdf

      [ Edited: 18 Oct 2018 at 10:56 pm by Elliot Kent ]