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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

New style ESA and a reverse lobster manoeuvre?

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Cordelia
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We have a client who appears to be in receipt of new style ESA, PIP daily living component, UC and HB.  The HB is because she is in specified accommodation.

Would it be possible for her to get onto irESA?  If she ends her ESA claim she will become entitled to an SDP in her HB, so the hard gateway would apply.  But is it possible to convert new style ESA to income-related ESA?

Commencement Order 9 seems to suggest it does.  I won’t reproduce all of the text but as the explanatory note says

“Article 6 makes transitional provision with respect to the case where—
a) a person has a new style ESA award or new style JSA award;
b) any award of UC has come to an end;
c) the person applies for supersession of the decision to make the award or makes a claim for UC, any claim for UC does not fall within the cases in article 4(2)(b) to (d), and the person does not reside in a relevant district or does not meet the Pathfinder Group conditions at the time that the application is received or the claim is made.
Subject to certain other conditions being satisfied, the award is treated as though the amending provisions had not come into force, such that the person is able to claim income-related ESA or income-based JSA once again. “

We did ask a contact in the ESA processing section how they would respond in this situation.  They basically said once on UC always on UC, but I’m not convinced that they understood fully understood the scenario we were asking about - they don’t seem to understand that the person would get an SDP in her Housing Benefit. 

Has anyone come across a similar situation, and what was the outcome?

Dan_Manville
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Cordelia - 18 September 2019 08:26 PM

Has anyone come across a similar situation, and what was the outcome?

I have withdrawn UC and claimed IRESA. Dunno whether the NSESA would trip that process up.

That aside, the “reverse lobster” is worthy of a Karate Kid reboot.

ROBBO
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Before the internet, you might have been unaware that someone had already written a song called ‘reverse lobster’.

https://gifthorserides.bandcamp.com/track/reverse-lobster

Charles
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Cordelia - 18 September 2019 08:26 PM

We have a client who appears to be in receipt of new style ESA, PIP daily living component, UC and HB.  The HB is because she is in specified accommodation.

Would it be possible for her to get onto irESA?  If she ends her ESA claim she will become entitled to an SDP in her HB, so the hard gateway would apply.

She is entitled to SDP in her HB without ending her ESA claim.

But is it possible to convert new style ESA to income-related ESA?

Commencement Order 9 seems to suggest it does.  I won’t reproduce all of the text but as the explanatory note says

“Article 6 makes transitional provision with respect to the case where—
a) a person has a new style ESA award or new style JSA award;
b) any award of UC has come to an end;
c) the person applies for supersession of the decision to make the award or makes a claim for UC, any claim for UC does not fall within the cases in article 4(2)(b) to (d), and the person does not reside in a relevant district or does not meet the Pathfinder Group conditions at the time that the application is received or the claim is made.
Subject to certain other conditions being satisfied, the award is treated as though the amending provisions had not come into force, such that the person is able to claim income-related ESA or income-based JSA once again. “

We did ask a contact in the ESA processing section how they would respond in this situation.  They basically said once on UC always on UC, but I’m not convinced that they understood fully understood the scenario we were asking about - they don’t seem to understand that the person would get an SDP in her Housing Benefit. 

Has anyone come across a similar situation, and what was the outcome?

I haven’t come across it, but you most certainly are correct.

Interestingly, when the SDP gateway was introduced, they forgot to make a consequential amendment to Art 6, as a result of which you would not have been able to convert it back to old-style. I wrote about this at the time to DWP and to the JCSI.

This is what I wrote:

I’m writing with regard to S.I. 2019/10. I believe there is an omission in reg. 3. A consequential amendment would seem to be needed for S.I. 2013/983 art. 6(1)(e)(ii). (See, for example, S.I. 2017/483 art. 2(3).)

S.I. 2019/27 has the same problem, but there at least it won’t affect anyone. Here, however, the omission is significant, and will affect some cases. For example, a claimant in receipt of HB with an SDP who was receiving new-style ESA will not be able to claim UC, but will also not be able to convert their ESA claim to include ESA(ir).

So that is exactly your case!

Thankfully, S.I. 2019/167, Art 5(2)(b) corrected this omission, so you should be fine.

Cordelia
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The things you learn on the internet.  I had thought reverse lobster sounded like a yoga position, it never occurred to me it might be a song title.

Thanks you Charles for confirming I’m on the right track.  Just need to see whether the client and her appointee want to risk the DWP making a pig’s ear out her case…..

And sorry about the typo - I meant to say ends her UC not ends her ESA claim.

Dan_Manville
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Has anyone found this in the ADM? JCP are telling me that once on New Style always on New Style.

I can see that art 6 of CO No 9 disapplies “the amending provisions” where an award of UC comes to an end, but try explaining that to the gatekeepers on the end of the phone.

Edit… handy footnote; it’s useful to look at the amending provisions to article 6 as it spells out what it’s trying to do more succinctly

Edit… Success! I had to terminate my call yesterday while trying to persuade them to issue an ESA3; I’d been on hold for a long time while the oppo consulted their UC Scholars, but when I followed up this morning they have accepted this is correct and issued my ESA3.

[ Edited: 3 Oct 2019 at 11:46 am by Dan_Manville ]
Charles
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See V8100 onwards.

Dan_Manville
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Charles - 03 October 2019 11:38 AM

See V8100 onwards.

Thanks Charles

What’s your opinion of “by virtue of the coming into force of the amending provisions…” in the first paragraph of article 6?

On my reading I see “if you’ve converted to New Style from Old Style…” and this doesn’t bite for New Style claims that were made as New Style claims.

see my edits above btw; they accepted this was the correct approach yesterday.

[ Edited: 3 Oct 2019 at 01:03 pm by Dan_Manville ]
Charles
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I don’t agree. I think it simply means that a new-style award (rather than an old-style award) was in place because the amending provisions had come into force. This is true even if the claim was originally made as a new-style claim.

It wouldn’t be logical to limit Art 6 to converted awards. The reason Art 6 was made was because if a person cannot claim UC, s/he must be allowed to claim a legacy income-related top-up. This applies equally however the claim was originally made.

Dan_Manville
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Charles - 03 October 2019 12:04 PM

I don’t agree. .

This is why it’s good to doubt myself…

Gail Knight
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I am having difficulty with a customer who receives new style ESA after previously exhausting all SSP but was still receiving wages from employer so only received NSESA at the time of her NSesa claim she was in receipt of HB with SDP and continues to do so she is now unable to claim UC

I have completed ESA1 and asked for NSesa to be superseded and old style claim with IR top up to no avail.

any suggestions

Charles
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I haven’t got any suggestions (other than getting them to make a decision refusing to supersede, MRing it, and then appealing it), but for accuracy’s sake, this should never have been new style ESA. It should have been old style contributory ESA.

WillH
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What Charles said.

If this client was unable to claim UC at the time she claimed cont ESA then it isn’t new style - it’s old style, & she can get irESA added to it if she meets the conditions.

See Art 5A WRA 2012 commencement order no 9

Alternatively, if she would have been able to claim UC at the time she claimed cont ESA, but has since become an SDP claimant (eg because PIP was only awarded after the cont ESA claim), then there is provision for that new style award to change to old style in exactly the circumstances your client is in, I think.

See para V8100 of the ADM - your client applied for a supersession so I think she is covered by this para. The relevant law is Art 6 of order no 9. However, from what you’ve said, you don’t need this because your client was already getting HB with an SDP at the time of the cont ESA claim.

Dan_Manville
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Bump

I have a RLM ongoing, UC withdrawn and ESA3 returned, NS/CESA in payment but 6 weeks in and the ESA3 hasn’t been received by JCP. Client is starting to sweat about their housing costs.

I think, from schedule 2 of the managed migration Regs that should we make a fresh claim to UC, then get the IRESA paid for the interim period then we’ll get the transitional SDP amount in the UC award.

I think I can but this is complicated so I want to double check.

Edit; they are now challenging that the NSEA converts back to CESA by virtue of article 6 WRA 2012 (C 9 & 8) 2013

Charles
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I can’t see why this wouldn’t work. When did the UC award actually end though?

Another option would be to end the ESA, and immediately reclaim it.

By the way, what is a RLM?

[ Edited: 19 Nov 2019 at 01:37 pm by Charles ]
Dan_Manville
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Charles - 19 November 2019 01:28 PM

By the way, what is a RLM?

Reverse Lobster Manouvre

I can’t end the ESA as I’m relying on it converting back to IRESA, gain the SDP then claim HB.

Thanks again