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

Credits-only ESA to get LCWRA?

unhindered by talent
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My client is unwilling/unable to claim Universal Credit for his daily living expenses. He receives PIP EDL, SRM and lives with his parents. He refuses to do the online claim and would not be able to engage with Jobcentre appointments (even an ID appointment) due to mental health issues.

As a workaround, could I assist him to apply for CBESA on a credits-only basis to try to get him LCW/LCWRA until he is at a point where he could claim UC? At that point , his (hopefully) LCWRA will transfer over and he won’t have to go for appointments, is my logic. Paper-based form he could cope with and if he has to have a face-to-face assessment we’ll cross that bridge when we come to it.

Any thoughts?

Dan Manville
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Appointee and/or a telephone claim.

Other than that I have a decent dialogue with our local Work Coaches and can usually get a UC claim up and running without the need for any face to face appointments where it’s needed. That said, I do have access to medical evidence so can provide a pretty compelling case where it’s needed.

[ Edited: 9 Jul 2019 at 10:50 am by Dan Manville ]
Jon (CHDCA)
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For credits-only I’d have thought he would normally need to attend to verify?

DWP are not obliged to assess for LCWRA if it’s credits-only, they are only testing for LCW. I have been informed that sometimes in practice they might also go ahead and decide on LCWRA as well, but whether they would place someone in the support group without a face to face assessment is another question.

http://www.legislation.gov.uk/uksi/2014/1230/regulation/21/made

unhindered by talent
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Jon (CHDCA) - 09 July 2019 12:52 PM

For credits-only I’d have thought he would normally need to attend to verify?

DWP are not obliged to assess for LCWRA if it’s credits-only, they are only testing for LCW. I have been informed that sometimes in practice they might also go ahead and decide on LCWRA as well, but whether they would place someone in the support group without a face to face assessment is another question.

http://www.legislation.gov.uk/uksi/2014/1230/regulation/21/made

I’ve never known anyone up here having to attend to verify a CBESA claim (as opposed to new-style) and i’ve not had anyone with a CBESA credits claim having to attend an assessment where there’s paper evidence - I assumed they just couldn’t be bothered if no money’s being paid!

 

Charles
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Jon (CHDCA) - 09 July 2019 12:52 PM

http://www.legislation.gov.uk/uksi/2014/1230/regulation/21/made

I think this actually wouldn’t apply to an assessment for credits done under the ESA Regs 2013 (as is the case here), only an assessment done under the ESA Regs 2008. The relevant provision would be reg. 39(1)(a) of the UC Regs, which includes an assessment done under the ESA Regs 2013.

WillH
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I’m not sure his LCWRA element would transfer over immediately though.

As Charles has pointed out, the TP regs refer to assessment under the 2008 Regs (ie old style ESA).

Reg 28 of the UC Regs says you can’t have the LCWRA element until 3 months of med certs unless exceptions apply, and you have to have an actual award of new style ESA to get round that (reg 28(5(b)).

It may be arguable that the 3 months of med evidence mentioned in reg 28(2)(b) could include med certs submitted for new style ESA, but it’s not clear & I suspect the intention is to refer to med evidence submitted for UC.

In other words I don’t think a credits only claim for new style ESA helps you in getting the relevant LCW/LCWRA element early in UC (though it can help you to have LCW/LCWRA for other purposes eg here, so that the client has no work-related requirements).

Thoughts? I have a not dissimilar case (though it’s about claiming new style ESA before a move to UC because getting the LCWRA element is crucial to being better off on UC, & I don’t think it works) so would love to be wrong!

[ Edited: 10 Jul 2019 at 08:42 am by WillH ]
Charles
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Yes, I agree with you.

On a related point, DWP say that in a case where the support component is only included in the new-style ESA award after the waiting period for the LCWRA element in UC has already started - even one day later - you have to wait the full 3+ months. See para F5052 here.
I think there is a decent argument to make against this interpretation of the regs though.

Jon (CHDCA)
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I stand corrected on the above points, sorry!

As it happens I’m just looking at the following scenario: client has a pension of ca £400pcm, no benefit claims in place (been living off depleting savings). Would probably qualify for the support group if he could be assessed. He would not qualify for UC unless the LCWRA element can be included. He won’t have the contributions for NS-ESA. Accessing that UC top-up doesn’t look straightforward…

edit: though I recall there is a rule to cover this situation and allow the UC claim to be made pending LCWRA assessment, it’s UC reg 28(7) which allows 1p per month of UC pending assessment.

[ Edited: 10 Jul 2019 at 02:46 pm by Jon (CHDCA) ]
unhindered by talent
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My intention in claiming CBESA via an ESA1 is to get LCW/RA so that when it comes to claiming UC, my client won’t have Jobcentre appointments and if he decides to return to college, will have established LCW to go along with his PIP to entitle him to UC if he can face claiming.

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Charles - 10 July 2019 10:48 AM

On a related point, DWP say that in a case where the support component is only included in the new-style ESA award after the waiting period for the LCWRA element in UC has already started - even one day later - you have to wait the full 3+ months. See para F5052 here.
I think there is a decent argument to make against this interpretation of the regs though.

I’ve spotted that before. Seems quite perverse and means that if someone claims New style ESA and later claims UC if they get put into ESA Support Group they get no financial benefit because a £1 for £1 deduction is made until such time as the UC waiting period has been served which, as you indicate, could be just short of a further three months.

For claimants who will not be entitled to any UC unless/until LCWRA element is included it makes sense to claim new style ESA, if they are eligible, and wait until Support Group is confirmed before starting the UC claim.

Whether this was a deliberate policy decision or simply an accidental result of the way the legislation is written I do not know.

Charles
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Ianb - 10 July 2019 05:36 PM

Whether this was a deliberate policy decision or simply an accidental result of the way the legislation is written I do not know.

I can’t think of a good reason why they would deliberately do it!

To expand on what I said about there being a decent argument to be made against DWP’s interpretation:

The regs (r28(5)(b)(i)) say: “[The waiting period] also does not apply if ... the claimant ... is entitled to an employment and support allowance that includes the support component”.
DWP’s interpretation is that this has to be the case before the waiting period has begun, but if not, the full waiting period is required.
I think a more logical interpretation is that even if the waiting period is already in progress, it would end when entitlement to the support component starts.

Charles
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Jon (CHDCA) - 10 July 2019 11:45 AM

I stand corrected on the above points, sorry!

As it happens I’m just looking at the following scenario: client has a pension of ca £400pcm, no benefit claims in place (been living off depleting savings). Would probably qualify for the support group if he could be assessed. He would not qualify for UC unless the LCWRA element can be included. He won’t have the contributions for NS-ESA. Accessing that UC top-up doesn’t look straightforward…

edit: though I recall there is a rule to cover this situation and allow the UC claim to be made pending LCWRA assessment, it’s UC reg 28(7) which allows 1p per month of UC pending assessment.

I’ve always wondered what would happen if there would only be entitlement if the claimant had a work allowance, which also depends on having LCW. Reg 28(7) only refers to the LCW/LCWRA elements being the cause.

There’s a separate (related) question from when a work allowance should start being provided in all cases where a claimant has been assessed as having LCW/LCWRA…

Julie Stuart
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Charles - 10 July 2019 10:01 PM

I’ve always wondered what would happen if there would only be entitlement if the claimant had a work allowance, which also depends on having LCW. Reg 28(7) only refers to the LCW/LCWRA elements being the cause.

I have a potential one of these too - my client is getting chemo and would if assessed have LCWRA.  However, his wife works enough hours that they don’t see the small value of the claim as worth the faf of following it through right now with so much else going on.

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Charles - 10 July 2019 09:55 PM

To expand on what I said about there being a decent argument to be made against DWP’s interpretation:

The regs (r28(5)(b)(i)) say: “[The waiting period] also does not apply if ... the claimant ... is entitled to an employment and support allowance that includes the support component”.
DWP’s interpretation is that this has to be the case before the waiting period has begun, but if not, the full waiting period is required.
I think a more logical interpretation is that even if the waiting period is already in progress, it would end when entitlement to the support component starts.

Belated response. I follow your interpretation that a waiting period should simply cease to apply if ESA Support entitlement exists which has the merit of making more sense. It is logical but isn’t how DWP have interpreted in ADM. Presumably would need a legal ruling to change this.