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transfer of support group/LCWRA from ESA if no health conditions declared on application
Long story short: client has significant MH problems and was getting ESA support group and enhanced care PIP. Cl has actively tried to move to UC since Dec 2019 despite significant financial loss and the SDP gateway.
Eventually cl cancelled ESA and PIP which allowed the claim to proceed. (cl is insistent on claiming UC and pending safeguarding referral assessment to hopefully assign an appointee it would be counter productive to make any moves to reinstate ESA as she will seek to undo them and return to UC - we’re looking in to reinstating PIP)
Not counting PIP which is a significant loss (£90pw), I calculated cl would be approx £104pcm worse off if LCWRA is transferred/ £445pcm if not.
In communication with the JCP to ensure this is added there’s the issue that client declared no health condition on her application (additional complexity in that she doesn’t believe she has any health condition/issues and does not want terms such as disabled/sick/ill used to describe her or any component of her benefit award)
Should LCWRA be added as she had an active ESA claim when she applied for UC without the need for health to be declared?
*just to note client has been advised repeatedly and in detail of the financial loss due to these decisions (by the JCP, HTC and Local CA) - safeguarding referrals have been made but initial assessments did not deem client to not have capacity. I had to give a background to answer the question…why can’t she just add a health condition?
If your client has been assessed as having mental capacity to make her own decisions, despite having mental health problems otherwise, I’m not sure there’s a great deal you can do other than advise her of the possible choices and leave her to it.
If she stopped her ESA award before claiming UC, then the LCWRA element doesn’t carry over automatically and so she would need to declare that she has a health problem to instigate the WCA process as well I’m afraid.
She stopped her esa the same day she claimed uc so effectively it was active on the date of her uc claim
Lcwra would transfer but they’re saying because she did not declare any health issues on her uc award it won’t.
*side note, initial safeguarding referral didn’t meet the required threshold, it went to the mental health team and then back to social services and (I’m not sure if based on further evidence as I didn’t make the referral) it’s now being reassessed with a decision due by Wednesday (which is unfortunately the first day of her second assessment period)
Ok, you might be able to argue that reg.19 of the Universal Credit (Transitional Provisions) Regulations 2014 applies
Transition from old style ESA
19.—(1) This regulation applies where—
(a)an award of universal credit is made to a claimant who was entitled to old style ESA on the date on which the claim for universal credit was made or treated as made (“the relevant date”); and
[F1(b)on or before the relevant date it had been determined that the claimant had limited capability for work or limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act).]
(4) Where, on or before the relevant date, it had been determined that the claimant [F6had limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act) or was treated as having limited capability for work-related activity]—
(a)regulation 27(3) of the Universal Credit Regulations does not apply; and
(b)the claimant is to be treated as having limited capability for work and work-related activity for the purposes of regulation 27(1)(b) of those Regulations and section 19(2)(a) of the Act.
Reg.19(1) states this regulation applies where an ESA award was in payment on the day on which a UC claim was made, and reg.19(4) allows the LCWRA element to be carried over from day 1 of the UC award.
If you were going to do this maneuverer, then it would be better to just relinquish the PIP, claim UC and then reclaim PIP. But there we are.
The fact that health issues were not declared on the claim form is wholly irrelevant. I suspect that, in administrative terms, the actual reason why LCWRA has not been transferred over is because it is dependent on ESA declaring an interest in the case and then submitting info (including the fact that there has been an LCWRA assessment) to UC. If ESA has been relinquished, then I suspect that ESA has stopped declaring an interest which has prevented the info being sent over.
As Paul says, the legal bit is in reg 19. I suppose your client will have to show that there was an ESA entitlement on the day that UC was claimed from.
Pip has already been cancelled, uc claim is continuing as dwp are no longer intervening.
We wouldn’t be able to get a new claim completed with her (as said previously she dies not believe she has a mental /health,condition though diagnosed paranoid schizophrenic well known to all local organisations). The only option we have is to look at getting the original claim reinstated
I requested the application of reg 19 using precisely those reasonings, they specifically said it’s the new declaration of no condition /disability that impacts ability to work that has stopped it. They too have tried to get her to update her uc but without her taking action or appointee acting on her behalf it can’t be amended. Even conference calls to request it be done over the phone won’t work as she point blank refuses, even becomes abusive at the suggestion. And she’s now banned from the jobcentre so can’t go in with a professional to complete (not that she’d engage with services to that extent anyway)
Should lcwra be added regardless of the uc application health question?
Should lcwra be added regardless of the uc application health question?
As per prior, the only question is whether reg 19 is satisfied. Whether or not she has ticked the box is completely irrelevant.
Should lcwra be added regardless of the uc application health question?
As per prior, the only question is whether reg 19 is satisfied. Whether or not she has ticked the box is completely irrelevant.
In what way can I explain that to the casemanager to get it added asap without the need for a mr (which again would be difficult without authority to act).
Reg 19 applies but how, in legislation and process, does the new declaration or effectively a change of circumstances stating no health conditions impact lcwra.
Say she already had lcwra, could she remove it by declaring a change in health?
I am not sure that we have the neat answer you are looking for. The law is clear. If the conditions set out in reg 19 are satisfied, which you say they are, then LCWRA applies. You cannot opt out of part of a benefit, so it remains payable whether the claimant wants it or not.
There are much broader questions here which I think you need to discuss with your services’ management. It still seems to be a live question whether this individual has capacity to instruct you in the first place, but if they do, it seems to be the case that they are distrustful of your advice and are going to take steps either to actively undermine their benefits position and/or decline to authorise you to take action to improve it. I can appreciate that this is something which is influenced by their mental health, but if it is the case that they have capacity, then the law regards them as entitled to make those decisions.
I can understand the impulse to want to improve this vulnerable person’s position, but there are limits to what can realistically be done. You can’t sort this out for them with both your hands tied behind your back.
I get that but we have framed the lcwra without the use of terms like sick/disabled and she is happy with that - but not to the point she’d add a health condition on her journal (we’re in Cornwall and she’s up country). What is somewhat behind her wanting to move to UC was the fact she had severe disability
I said exactly that, it would transfer automatically under reg 19 without having to opt in/out. However what’s thrown me is the UC application and new declaration that she has no health condition.
If this was a different circumstance and she already had lcwra would a change of health reported on her journal prompt the end of lcwra without a reassessment?
I think I’ve simplified my query -
UC have said reg 19 would apply BUT for the new application stating no health condition - so my query is - does ‘no health conditions’ declared on UC application constitute a change of circumstances that would remove entitlement to LCWRA
As per previous posts, no.
The fact that your client did not mention a health condition on her claim is irrelevant. DWP may as well be saying that your client can’t have the LCWRA element because she is too tall.
As per previous posts, no.
The fact that your client did not mention a health condition on her claim is irrelevant. DWP may as well be saying that your client can’t have the LCWRA element because she is too tall.
We’re back to the computer saying no unfortunately.
I had a couple of cases in my last job where previously healthy people had been detained under the MHA, no access to computers and did not have their log in details so could not report a health condition.
After much toing and froing and a threat of JR we were engaged by one of the UC moghuls or tsars or whatever they call them, they told me that unless a health condition is reported; by the claimant, they can’t do it on their end, then the process to refer through MSRS and award the LCWRAE is “greyed out”, staff can’t make it happen and the computer will not pay the LCWRAE unless that health condition is reported irrespective of whatever has gone before.
Again, it’s all about the build and the computer, if not making a decision, then at least enforcing one.
As per previous posts, no.
The fact that your client did not mention a health condition on her claim is irrelevant. DWP may as well be saying that your client can’t have the LCWRA element because she is too tall.
We’re back to the computer saying no unfortunately.
I had a couple of cases in my last job where previously healthy people had been detained under the MHA, no access to computers and did not have their log in details so could not report a health condition.
After much toing and froing and a threat of JR we were engaged by one of the UC moghuls or tsars or whatever they call them, they told me that unless a health condition is reported; by the claimant, they can’t do it on their end, then the process to refer through MSRS and award the LCWRAE is “greyed out”, staff can’t make it happen and the computer will not pay the LCWRAE unless that health condition is reported irrespective of whatever has gone before.
Again, it’s all about the build and the computer, if not making a decision, then at least enforcing one.
Thank you - that explains it