ESA WCA appeal after an unsuccessful UC claim (HRT/R2R disallowance)

Hi,

Can anyone help please?

Client was found fit for work on 20/9/18 (ESA WCA disallowance) and made a new claim for UC on 23/9/18.  The UC claim was disallowed (no right to reside) and although there is an appeal in I don’t think it will be successful.

The client has since been granted EU settled status and made a new UC claim in August 2019 which is now in payment.  His ESA WCA appeal has now been listed so I am just trying to think what practical benefit it will have to the client if the appeal is allowed.  He has MH problems and will be very anxious about a hearing so if there is very little benefit he may not want to put himself through it.

As he made a UC claim 3 days after he was found fit for work, there will be very limited ESA arrears.  Originally I was thinking oh well, at least the LCW/LWRCA elements would be included in his current claim but I guess that won’t be the case either as he had the unsuccessful UC claim in the interim.  He won’t have been entitled to ESA up until this current claim.

So, as far as I understand it, the only ‘benefit’ would be that he can get referred for another WCA under UC without having to evidence a new condition/significant deterioration. 

Have I missed anything?

Many thanks for your advice

JPCHC - you don’t say why you think your clients UC R2R appeal will not succeed are how long s/he had been on ESA and if s/he was receiving the WRAG or SG component. I would assume that at some point the R2R was applied for ESA purposes. Have DWP given any reasons why they argue that R2R does not apply to UC?

We are seeing a lot of similar cases where EEA nationals have been ‘naturally migrated’ to UC after many years on a ‘legacy benefit’. UC determine they no longer have a R2R. Usually because UC will not accept clients evidence as sufficient to demonstrate R2R. Often this is because client no longer has the evidence that may have been accepted for R2R for legacy because their original claim for legacy was many years ago.

UC as a matter of routine do not appear to check the basis on which R2R was accepted for the legacy benefit. DWP often argue that the legacy benefit records going back that far have been destroyed (probably true of paper records but not of IT) so the DWP cannot state the basis on which R2R was originally accepted.

Sometimes they are able to produce some legacy screen prints which show R2R was accepted but rarely does that record give the reason (i.e ‘retained worker status’). For example I have a current appeal where client has been in GB for 14 yrs and must have had R2R accepted for claims for IS, JSA and then ESA - but refused under UC following ESA WCA fail. DWP cannot produce any evidence of the basis on which R2R was previously accepted.

In other words UC/DWP arguement is (by default if not design) that UC is a new claim an the onus lies on the claimant to prove their eligibility inc. R2R. I have had a tribunal take that approach at the UC R2R appeal hearing.

DWP often provide a copy of the clients NI contributions / credits records - a word of warning - these are not always accurate. Had one case recently where client had retained at least some records of employment and benefit claims inc a P45 from end of a JSA award years ago that demonstrated the NI record produced by DWP was inaccurate (client would have lost his appeal without that evidence which filled in a big gap in his work/claim history).

Therefore there may well be merit in your clients UC R2R appeal? I would suggest you will need to assist your client to gather every possible piece of evidence regarding their employment and benefit claim(s) history and evidence that might support any other R2R status including a derived right or right of permanent residence. this may include making a ‘subject access request’ to get all records of their prior legacy benefit claims/awards - experience would suggest that UC only make a superficial search at best of what info. is still retained in legacy benefit records.

If your client is successful in both their ESA and UC R2R appeals that should (a) R2R -fill in the gap for a basic UC award (b) ESA apply the transitional provisions for the appropriate ESA/UC component if applicable (i.e. was WRAG component in payment because client had been on ESA continuously since before April 17).

Yes it generates a lot of work!

Thanks for your reply.  Unfortunately there isn’t really any arguments we can run on this one as he didn’t have a qualifying right to reside.  He wasn’t in the UK for 5 years before he went to prison, and that broke his continuity of residence.  He hasn’t exercised his Treaty rights since he came out of prison and really we cannot understand on what basis they paid him IRESA in the first place.  We did a Subject Access Request but didn’t get what we needed and the UC appeal bundle says no record of any HRT decisions, or whether he was in fact referred for an HRT decision.

So my question really is just what/if any benefit is there to the client of proceeding with his ESA WCA appeal even if it is allowed?

It’s tomorrow!

Thank you

Wouldn’t winning the appeal get him 11 months of NI credits, eg towards state pension?

Jon (CHDCA) - 22 August 2019 02:48 PM

Wouldn’t winning the appeal get him 11 months of NI credits, eg towards state pension?

This would then also allow him to be treated as having LCW/LCWRA from the start of the UC claim. Also, it would protect entitlement to the LCW element if they were getting it before April 2017.

Charles - 23 August 2019 12:30 PM

Jon (CHDCA) - 22 August 2019 02:48 PM

Wouldn’t winning the appeal get him 11 months of NI credits, eg towards state pension?

This would then also allow him to be treated as having LCW/LCWRA from the start of the UC claim. Also, it would protect entitlement to the LCW element if they were getting it before April 2017.

Interesting thanks but I am not sure I follow.  I was looking at CPAG handbook (page 70) which says if you were entitled to the WRAC in your ESA on the date you claimed UC, then you are treated as having LCW and the LCW element will be included straightaway.  In this scenario, he won’t have been as he claimed UC unsuccessfully previously which ended his legacy benefit entitlement.  This new UC claim is almost a year later and his ESA will only be paid up until the date of his first unsuccessful UC claim. Thanks in advance

I can’t answer for the CPAG handbook, but there is specific provision for NI credits to do the same job as actual ESA entitlement. See Reg 21 of the UC(TP) Regs. (Regs 19 & 20 are the regulations providing for cases where the claimant was actually entitled to ESA).

Charles - 23 August 2019 12:30 PM

Jon (CHDCA) - 22 August 2019 02:48 PM

Wouldn’t winning the appeal get him 11 months of NI credits, eg towards state pension?

This would then also allow him to be treated as having LCW/LCWRA from the start of the UC claim. Also, it would protect entitlement to the LCW element if they were getting it before April 2017.

I understand the first 3 months LCW/LCWRA will be unpaid.

Regulation 21(3), (5), (6) & (7) of the Universal Credit (Transitional Provisions) Regulations is clear that the first 3 months should be paid. If this is not happening, the decision should be appealed.

See also the guidance from M6220 on.

Thanks, Charles. I was not aware of that. And as luck would have it, I saw a client today who claimed UC two weeks ago, and whose partner was getting ESA Support Group until February, when my client started working. They were complaining that the DWP keep sending them letters asking for information about income. We put a note on the journal to ask them to look at LCWRA - it seems they were unaware of Reg 21 as well. Although it’s possible the ESA is actually still open - I haven’t seen a decision letter ending it.

Thank you for all your great advice.  Although he didn’t go to hearing in the end, we put in written submissions and the appeal was allowed.  In less than a week they’ve implemented HMCTS decision and paid arrears of IRESA for the full 10 month period, despite 2 UC claims in the interim, so thank god we did.

The mind boggles!

Charles - 28 August 2019 10:15 AM

Regulation 21(3), (5), (6) & (7) of the Universal Credit (Transitional Provisions) Regulations is clear that the first 3 months should be paid. If this is not happening, the decision should be appealed.

See also the guidance from M6220 on.

Thanks for the correction, Charles, very useful.

I have a case where -
Husband (J) claims ESA and is treated as having LCWRA (Terminal illness)
Wife S is added to J’s ESA claim (joint claim) but is never assessed
J passed away
ESA is ended for S (change of circ’s)
S claims UC, is assessed and awarded LCWRA

Where does S stand on the UC 3 month rule?

The ESA was J’s award - S was the partner for means testing purposes.  There are no joint claims for ESA.  This doesn’t guarantee that S has LCW - you don’t say whether S herself was assessed for LCW during J’s lifetime.

J’s ESA ended because the claimant died.  It was never S’s award and she now claims UC as a clean skin new claimant in her own right.  She doesn’t inherit any passporting effect from J’s ESA.  The only way she would have a UC supplementary element from Day 1 would be if she herself had been assessed as having LCW long enough before J’s death.

In other words, J is a red herring.  The only significance of J is that he was the legacy benefit claimant, which is why S has to make a new UC claim.  It is her own LCW history that determines whether she waits three months for the element.

Actually, thinking about this, depending when this happened (before or after UC full service in their area), how was J able to claim ESA(ir)?  As a couple, did they satisfy SDP conditions?  So I’m guessing J’s ESA claim predates full service - is that right?

That’s right, HB. Full service rollout was October 17, J’s claim was March 17.

S was never assessed (no determination)

I’m not sure yet if they satisfied SDP conditions. Still waiting for outcome of a request for directions to disclose the relevant ESA docs for appeal.

“She doesn’t inherit any passporting effect from J’s ESA.” was my main question and I’m straight with that now, so thanks for that.