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

LCWRA element when moving from ESA to UC

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Paul_Treloar_AgeUK
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Just want to check I’m not missing anything obvious here.

Mixed-age couple where older partner was ESA claimant and in support group. ESA award stopped when he reached State Pension age so advising needs to claim Universal Credit in order to get any help with housing costs as HB award also stopped.

Because there is a gap between ESA award stopping and new UC claim going in, he can’t take advantage of reg.19 of UC Transitional Provision regs which would otherwise allow LCWRA element from day 1 of UC claim.

As such, he’s going to need to supply fit notes and seek new WCA in order to try and get LCWRA element paid from 13 weeks - no way around it? Is that correct because this is very distressing if so and yet another example of just how bad this change has been.

Any ideas, thanks for responses.

Daphne
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Hi Paul - that is distressing. Two thoughts - how big is the gap between ESA ending and UC starting - any chance of backdating? I know the backdating rules are really tough though.

And any PIP entitlement - specifically enhanced daily care - that would give automatic entitlement to LCWRA?

Paul_Treloar_AgeUK
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Thanks Daphne, that’s a good point about the PIP, he does have an award but not sure of rate.

Could try for backdating I suppose, nothing to lose.

Ianb
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I think this has come up before and advice to someone on ESA in MAC is to claim UC before they reach pension age. But of course most claimants do not have advisers so will only discover the problem after the event.

MareeH
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I had a couple last September with the same circumstances.  By the time they came to me, it was three weeks after the older claimant reached state pension age, and of course ESA had already ceased.  They only got PIP standard daily living so couldn’t take advantage of Schedule 9 paragraph 5 of UC Regulations 2013 to be passported to LCWRA (though even if they had, that would be subject to 3 month waiting period).

The claimant had not received a letter stating his ESA was terminating, before it did.  He actually received a letter stating that his ESA was reducing at his state pension age - they said they would be paying around £38 a week, and he assumed that this was because of his state pension.  A further letter was dated a few days after his state pension age saying that the award had terminated.

Due to this I was able to get the UC backdated to the day before state pension age so that LCWRA could transition over, using regulation 26 of “The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013” which deals with the time within which a claim for Universal Credit is to be made.

“26.—(1) Subject to the following provisions of this regulation, a claim for universal credit must be made on the first day of the period in respect of which the claim is made.

(2) Where the claim for universal credit is not made within the time specified in paragraph (1), the Secretary of State is to extend the time for claiming it, subject to a maximum extension of one month, to the date on which the claim is made, if—

(a)any one or more of the circumstances specified in paragraph (3) applies or has applied to the claimant; and
(b)as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.
(3) The circumstances referred to in paragraph (2) are—

(a)the claimant was previously in receipt of a jobseeker’s allowance or an employment and support allowance and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant’s entitlement expired;
(b)the claimant has a disability;”

It wasn’t easy - it took 6 months for it to be finally resolved, but they were finally awarded and backpay processed.

Paul_Treloar_AgeUK
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Thanks Maree, that’s really helpful and encouraging. What you’ve described is more or less what I’ve suggested to our adviser, so fingers crossed. What a palaver.

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Hi Maree, I have a client in the same position as Paul’s. Did you advise your client to submit fit notes and request a new WCA from the start of the claim in case the backdating challenge didn’t succeed?

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Further to above, my client says that his wife, who reached SRP age on 6/5/20, got a letter notifying her that ESA would stop a few days before the SRP date, but it appears she did not act on it. They did not claim UC until 1/6/20 so a backdate request to cover the period to 5/5/20 to get transitional protection for the LCWRA element would seem unlikely to succeed.
Fit notes and request for new WCA for wife?

Paul_Treloar_AgeUK
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The only other backdating provisions I could see that might apply in that case would be on the grounds of disability but the obvious problem is that the reason for the late claim must apply to both members of the couple apparently. I’ve told our adviser to give it a shot if they did receive a letter like your client (I don’t know either way whether they did or not so also advised that possibility in my case).

Otherwise, yes it’s a fit note and WCA which just seems absurd. We’re planning to write to DWP to see if anything can be done to rectify this. Obvious solution to me would be to allow backdating where reason for UC claim is someone reaching SPA - that way, the extension of backdating would only apply to MAC’s and would be limited to one month but it would fix this silly situation.

MareeH
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Killie - 14 July 2020 02:49 PM

Hi Maree, I have a client in the same position as Paul’s. Did you advise your client to submit fit notes and request a new WCA from the start of the claim in case the backdating challenge didn’t succeed?

I actually advised them not to submit fit notes or request a WCA.  They so clearly met the backdating rules due to the letters received that I only took that route.  There were times I thought in hindsight that I’d been a bit arrogant in that - was very happy when it all came good in the end.

If your client doesn’t have a cast iron reason for backdating then I think you would be right in pursuing both routes.

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Thanks Paul and Maree.
They’re in a strange position- they were apparently told when they claimed UC that they would receive around £100 pw, so asked for an advance payment of around £1k, agreeing to repay at £83pcm for 12 months. Whoever told them what they would get was not however taking into account the fact that the LCWRA element would not be included in the calculation until after wife has been found to have LCWRA under a new WCA so actual UC is around £80pcm. In other words, their current UC is zero after the advance repayment is deducted.

Ianb
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Killie - 15 July 2020 08:50 AM

Further to above, my client says that his wife, who reached SRP age on 6/5/20, got a letter notifying her that ESA would stop a few days before the SRP date, but it appears she did not act on it. They did not claim UC until 1/6/20 so a backdate request to cover the period to 5/5/20 to get transitional protection for the LCWRA element would seem unlikely to succeed.
Fit notes and request for new WCA for wife?

It would be interesting to know whether these letters include any information on what other benefits may be available. Even if UC is mentioned I would be surprised if there is anything to inform a claimant of the importance of making a claim before reaching SP age. It would, in my opinion, be natural to think that any new claims should wait until ESA has ended,

Paul_Treloar_AgeUK
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Killie - 15 July 2020 11:55 AM

Thanks Paul and Maree.
They’re in a strange position- they were apparently told when they claimed UC that they would receive around £100 pw, so asked for an advance payment of around £1k, agreeing to repay at £83pcm for 12 months. Whoever told them what they would get was not however taking into account the fact that the LCWRA element would not be included in the calculation until after wife has been found to have LCWRA under a new WCA so actual UC is around £80pcm. In other words, their current UC is zero after the advance repayment is deducted.

That’s appalling. I’d consider complaining about that case to be honest, shouldn’t be happening according to DWP on basis of their smug evidence session this morning.

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Paul_Treloar_AgeUK - 15 July 2020 02:05 PM

That’s appalling. I’d consider complaining about that case to be honest, shouldn’t be happening according to DWP on basis of their smug evidence session this morning.

Neil Coyle referred to Mr Quince as pompous -  apparently he has never been called that before…

MareeH
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Ianb - 15 July 2020 01:46 PM
Killie - 15 July 2020 08:50 AM

Further to above, my client says that his wife, who reached SRP age on 6/5/20, got a letter notifying her that ESA would stop a few days before the SRP date, but it appears she did not act on it. They did not claim UC until 1/6/20 so a backdate request to cover the period to 5/5/20 to get transitional protection for the LCWRA element would seem unlikely to succeed.
Fit notes and request for new WCA for wife?

It would be interesting to know whether these letters include any information on what other benefits may be available. Even if UC is mentioned I would be surprised if there is anything to inform a claimant of the importance of making a claim before reaching SP age. It would, in my opinion, be natural to think that any new claims should wait until ESA has ended,

The letter dated four days before the claimants retirement age states:

“From (date) your Employment and Support Allowance will be £xx.xx per week.

This is because of an age change”

The letter dated 12 days after the claimants retirement age states:

“We cannot pay you an allowance from (date).  This is because:

You have reached state pension age and should claim retirement pension.  If you do not have enough money to live on you may be able to get Income Support or Pension Credit.  Your local Social Security Office or Pension Centre can tell you more about this.”

Ianb
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Absolutely nothing to help a member of a MAC find their way then!