New style ESA and UC Housing Costs

Client was working f/t until Feb 2019. He claimed new style ESA and UC for Housing Costs. He was placed in the LCWWRA group for ESA. His £483.82 ESA is deducted from his UC award - SA & £514.50 Housing Costs - leaving him with £348.50 UC to pay to his rent. Once he has topped up the shortfall £166 rent shortfall from his ESA, he is left with £317.82pm .
If he had not claimed new style ESA and had been awarded the LCWWRA element of UC instead, he would be left with £654.02pm after deducting Housing Costs.
Our client is a single man with no savings and long term mental health problems. Is there any way he can move from new style ESA to UC only,  without losing his LCWWRA and being forced to start the health assessment process again?

The UC award is wrong. The ESA assessment applies for UC purposes and the LCWRA element is payable. See Regs 40(1)(ii) of the UC Regs.

He should be in essentially same position regardless of whether he has a “dual claim” (i.e. UC and nsESA) or only claims UC.

Elliot Kent - 11 February 2020 10:39 PM

The UC award is wrong. The ESA assessment applies for UC purposes and the LCWRA element is payable. See Regs 40(1)(ii) of the UC Regs.

I note you’ve edited out reference to paragraph 28(5)(b)(i) which was the reference that convinced me my previous post (now deleted) was wrong. I envisaged a situation where UC claimed later than ESA and Support Group was now in place but UC relevant period still being served, 28(5)(b)(i)  appears to deal with that by saying relevant period does not apply in such a situation.

Ianb - 11 February 2020 10:49 PM

I note you’ve edited out reference to paragraph 28(5)(1)(b) which was the reference that convinced me my proviso post was wrong.

Yes I think I bungled it up a bit by mis-reading the first post so I was going to re-phrase it..

If UC and ESA were claimed at the same time, then there will be a three month waiting period before both the ESA support component and UC LCWRA element both become payable. (So in practice - three months of standard allowance + HCE UC minus ESA personal allowance)

But if the ESA assessment has already been done, the effect of reg 28(5)(1)(b) is that there is no further waiting period for UC purposes. So if you claim ESA, get your SG assessment and then claim UC, then you are immediately entitled to the LCWRA element.

The idea being that you don’t have to serve the waiting period twice over. You do it once (either on UC, ESA or a dual claim) and then get your assessment which is effective for both benefits.

But in this case, DWP have mucked up because UC appear not to have implemented the LCWRA assessment at all.

Thanks, Elliott. I agree with both your scenarios which is what I initially posted too (at the same time).

I had a third scenario in which the gap between the start of ns-ESA and UC claim is less than 3 months. This could be because ns-ESA is claimed first or because the ns-ESA claim is made simultaneously but with some backdating. In this case part of the ESA assessment phase has already been served which means that the Support component becomes payable part way through the UC relevant period. In this scenario I thought that the UC three month relevant period still had to be served so a situation could arise (albeit for a short(ish) period only) in which the Support Component is payable but not the LCWRA element because that is what Advice to Decision Makers says at paragraph F5052. “F5052 Where entitlement to the ESA support component begins after the award of UC, the claimant must serve the relevant period as in F5031 before the LCWRA element can be included in the UC award.”

I remembered this and put it in my post but when I read your post and then looked at Regulation 28(5)(b)(ii) I am not sure that the ADM is is a correct interpretation of the regulation.
“Period for which the LCWRA element is not to be included
28.—(1) An award of universal credit is not to include the LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.
(2) The relevant period is the period of three months beginning with……
(5) Paragraph (1) also does not apply if—
(b) the claimant—
(i) is entitled to an employment and support allowance that includes the support component , or…..”

The ADM effectively takes the view that if a relevant period has been started then the full 3 months have to be served - I am not convinced this is what the legislation says. My reading would be that an award of ESA Support component negates the relevant period and the LCWRA element should therefore be included (from the start of the AP during which the Support component starts being taken into account in the ESA deduction). I note that F5052 doesn’t have any reference to the regulations to support it.

All of this was going through my mind last night but it was too close to bed time to think it through and write it down!

Have gone some way away from HFCAB question. If claim(s) were made a year ago the UC award is, as you say, wrong. However would welcome opinion from others on whether ADM F5052 is legally correct or not.

I’m not entirely persuaded ADM F5052 is right. I suppose the logic is that the relevant period is set when the claim is made (or medical condition reported) and that once it has been set, it must be played out even if something happens which would bring someone within 28(5). This could then result in a situation where someone claims ESA and then claims UC 12 weeks later and needs to serve an effective six month waiting period (3 months on ESA waiting for the support component and then 3 months receiving UC and having the support component deducted).

But I can’t really see why the relevant period needs to work like that. If the claimant is mid-way through the relevant period and then becomes subject to reg 28(5)(b) (or (5)(a) for that matter), isn’t the natural reading that the relevant period provisions cease to operate and the LCWRA element therefore becomes payable? I think that is probably the correct view just on the reading of the provision, but it also achieves the purpose of the legislation (i.e. a single 3 month wait).

Elliot Kent - 12 February 2020 08:12 AM

But I can’t really see why the relevant period needs to work like that. If the claimant is mid-way through the relevant period and then becomes subject to reg 28(5)(b) (or (5)(a) for that matter), isn’t the natural reading that the relevant period provisions cease to operate and the LCWRA element therefore becomes payable? I think that is probably the correct view just on the reading of the provision, but it also achieves the purpose of the legislation (i.e. a single 3 month wait).

That’s my reading too, having now read the regulation thanks to your earlier post. It would be both fair and logical (which I know don’t always apply). That leaves the problem of challenging the advice in ADM if we have claimants who fall foul of it. The most likely scenario is where claimants have the opportunity to backdate their ESA claim and, on the strength of ADM and if only single person standard allowance is in play, I have previously advised claimants to claim ESA with backdating and wait to be put in Support Group before claiming UC. This is smoother for my client group because many are automatically entitled to be placed in Support Group without a face to face assessment due to their medical treatment.