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LCW element
I’m currently supporting a client who has just migrated from ESA to UC. Their ESA claim included the WRAG component at the point when it ended.
UC have said that they are not entitled to LCW element. I’ve checked with ESA, and the most recent claim for ESA started on 3/5/17, so just after the cut off point of 3/4/17. However ESA say that they linked the most recent claim with a previous claim which ended 20/3/17, which is why they were being paid the WRAG component (received JSA in between).
Does this mean that they have missed out on LCW element because of the 6 week break in their ESA claim, or are there linking rules in place for UC as well? If there are linking rules, could someone point me in the direction of the relevant regs?
Thanks
You don’t say why ESA stopped.
If they were in receipt of ESA with the WRAC on the day they claimed UC it should transfer accross. No need for llinking, it’s as straightforward as that.
UC probably haven’t done the transfer, or ESA stopped for some reason other than the claimant having claimed UC.
The claimant made the decision to claim UC rather than ESA as partner started to do some work, and they would be better off under UC.
The LCW status has been transferred to the UC claim, but they are refusing to pay the element as ESA have told them that the start date for the ESA claim was 3/5/17.
The date of the ESA claim is a red herring in cases such as this; it’s the same with claimants who migrated from Incapacity Benefit on or after 3 April 2017 and were placed in the Work Related Activity Group following their initial Work Capability Assessment: although their ‘date of claim’ would indicate that they were not entitled to the relevant component, such claimants benefitted from transitional protection and were paid their component in ESA, and provided that component was still in payment when the UC claim was made then they are entitled to relevant element in Universal Credit. Universal Credit therefore appear to be misdirecting themselves as to what is actually important in this case.
Would it perhaps be worth uploading a copy of the annual uprating letter for 2019/20 to their journal for the attention of the claimant’s case manager?
UC accept that the WRAC was in payment on transfer from ESA to UC so this is not the issue.
I’m trying to find the regs to support the argument that what is important is whether the WRAC was in payment not the date of the current ESA claim. I can find regs which support the fact that the WRAC should have been in place for the ESA claim, as there is a 12 week linking rule between two claims which protects the WRAC.
I can’t find the equivalent under the UC regs, which do all seem to make reference to continuous entitlement to ESA from before 3/4/17.
I may have a different argument though. The claimant has informed me that the gap was because they were found fit for work, claimed JSA whilst an MR took place, went back onto ESA whilst waiting for appeal which was successful.
If this is correct, I think that the ESA claim should have been continuous as the decision to stop it was challenged and overturned - and any JSA paid in the meantime should have been offset against the backdated ESA?
I was wrong; it’s not payment of the component but the status as LCW that’s relevant. The awards link, true, but do the periods of LCW?
I’ve got to go out now.
That aside; finding the regs is a nightmare, there are two errors on the path to find them; there isn’t a 16/17 edition of vol v…
Regulation 19(3) of The Universal Credit (Transitional Provisions) Regulations 2014 ought to cover you?
The UC (TP) regs 2014 were amended to remove 19(3) in 2017 so can’t rely on that regulation any more.
Unfortunately DWP are right about this one. There will not be entitlement to an LCW element.
The relevant regs are here: http://www.legislation.gov.uk/uksi/2017/204/schedule/2
Just been sent a copy of the tribunal decision which reinstates ESA and LCW from 21/3/17. Therefore continuous entitlement since 2012. Once ESA records corrected should be able to get the LCW element added.
Regulation 19(3) of The Universal Credit (Transitional Provisions) Regulations 2014 ought to cover you?
That was revoked by the 2017 misc amendment regs I struggled so hard to track down earlier on…
Pretty sure it’s the Periods of LCW thank link though so now I’m back, and to the usual soundtrack… I shall check.
Yep, they do, reg 145 ESA regs 2008
[ Edited: 20 Jun 2019 at 04:22 pm by Dan_Manville ]Unfortunately DWP are right about this one. There will not be entitlement to an LCW element.
The relevant regs are here: http://www.legislation.gov.uk/uksi/2017/204/schedule/2
3. The second circumstance is where the claimant’s period of limited capability for work began on or after 3rd April 2017 and is treated as a continuation of an earlier period of limited capability for work which began before 3rd April 2017 by virtue of—
(a)
regulation 145 of the ESA Regulations 2008;
...
Unfortunately DWP are right about this one. There will not be entitlement to an LCW element.
The relevant regs are here: http://www.legislation.gov.uk/uksi/2017/204/schedule/2
3. The second circumstance is where the claimant’s period of limited capability for work began on or after 3rd April 2017 and is treated as a continuation of an earlier period of limited capability for work which began before 3rd April 2017 by virtue of—
(a)
regulation 145 of the ESA Regulations 2008;
...
Yes but that only applies to ESA.
The Schedule provides that the WRAC component can be paid in an ESA claim under paragraphs 1-7 or a UC claim under paragraphs 8-15.
All moot in this case though as it appears that there was an entitlement pre 03.04.17
Unfortunately DWP are right about this one. There will not be entitlement to an LCW element.
The relevant regs are here: http://www.legislation.gov.uk/uksi/2017/204/schedule/2
3. The second circumstance is where the claimant’s period of limited capability for work began on or after 3rd April 2017 and is treated as a continuation of an earlier period of limited capability for work which began before 3rd April 2017 by virtue of—
(a)
regulation 145 of the ESA Regulations 2008;
...
Yes but that only applies to ESA.
The Schedule provides that the WRAC component can be paid in an ESA claim under paragraphs 1-7 or a UC claim under paragraphs 8-15.
All moot in this case though as it appears that there was an entitlement pre 03.04.17
Exactly.
I’m still having problems with this one.
ESA say that it is right that there is a gap in the claim. They are saying that where a claimant has claimed JSA during the MR period, this stays in place even where the appeal is successful. They say that they did pay the work related activity element to the claimant for the period that they were on JSA, so they are not owed any money.
UC are saying that they won’t add the LCW element until ESA correct the date of claim information that they have supplied.
Am I right in arguing 1) the tribunal decision should have had the effect of reinstating ESA with no break in claim, and any JSA claimed should have been offset against the backdating of ESA that was owed.
2) It is not possible to add the work related activity element to a JSA claim, it is only payable under ESA.
3) UC should not need the start date of ESA amended if we have provided proof of LCW in the form of the tribunal decision.
Thanks
Assuming i read your last post correctly.
Article 24 commence order 9 etc on the penultimate page - see link below and Sweet & Maxwell Vol 5 UC pages 593 - 594 and escalating via the MP would help break the impasse.
Think Paul from Sefton and HB Anorak came up with this legislation/remedy (possibly Charles was the un-named resource), in another post last year.
We have used it in similar scenario’s since then arguing it and attaching the link to journals. Although without the impasse your experiencing.
http://www.legislation.gov.uk/uksi/2013/983/pdfs/uksi_20130983_310518_en.pdf