Gap in LCWRA from ESA to UC (transitional protection)

Hi there
Apologies if this has been asked, have read many, many posts, UC TP Regs etc and can’t find the answer.  UC are telling my client no, too.
Just want to check that a gap of 2 weeks from ESA with LCWRA to claiming UC means that you cannot rely on transitional protection.  Client had LCWRA but then went to prison for 2 weeks during which time he ESA was stopped and he claimed UC on release. 

Reg 19 UC(TP) regs:

Transition from old style ESA
19.—(1) This regulation applies where—
(a)an award of universal credit is made to a claimant who was entitled to old style ESA on the date on which the claim for universal credit was made or treated as made (“the relevant date”); and
(b)on or before the relevant date it had been determined that the claimant was entitled to the work-related activity component or to the support component.
(4) Where, on or before the relevant date, it had been determined that the claimant was entitled to the support component—
(a)regulation 27(3) of the Universal Credit Regulations does not apply; and
(b)the claimant is to be treated as having limited capability for work and work-related activity for the purposes of regulation 27(1)(b) of those Regulations and section 19(2)(a) of the Act.

Guessing that as he wasn’t entitled to ESA on the relevant date that this Reg doesn’t help but then have read on this forum that you can link a previous claim.  He was getting ESA(IR) before going to prison. 

Many thanks!

Hi JoJo,  I have an almost identical situation with a client although his period in custody was 4 weeks on re call I have also drawn a complete blank despite extensive searching - I really don’t think there is any transitional protection due to as you say client’s ineligibility for ESA due to the break caused by prison.  Sorry to not be of much use !!

Yes, I’ve come to that conclusion myself as the client was not “entitled to” ESA prior to claiming UC.  If his ESA 365 days had come to an end, then yes but not for a break.  Very unfair!!

I trust he was sentenced rather than on remand? If he was on remand there might still be a credits only claim for ESA floating around that would suffice to get the LCWWRAE into payment.

Sentenced as called back when he missed his probation appt. For future reference in which Reg does the NI credits help…i know I’ve seen it when I was researching for hours last night!

Many thanks

Dan Manville - 16 January 2019 12:16 PM

I trust he was sentenced rather than on remand? If he was on remand there might still be a credits only claim for ESA floating around that would suffice to get the LCWWRAE into payment.

A credits only award is not actually an ESA award - it is an award of NI credits based on LCW. It shouldn’t keep an ESA claim alive (although the DWP sometimes fails to understand this and reinstates ESA claims when it should really be a new claim). There’s a good explanation and discussion of it in this thread: https://www.rightsnet.org.uk/forums/viewthread/12714/

Having said that, I wouldn’t be adverse to advising a client to suggest to the DWP that there was “a credits only claim for ESA” which existed at the time of the UC claim, but it shouldn’t work.