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

UC for Disabled Prisoner

acg
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Claimant was on ESA in Support Group. No PIP award. He was sent to prison for 4 weeks. ESA ended from Day 2.On release claimed UC and was not awarded LCWRA element.

I think he still has LCWRA under UC regulation 40 (1) (ii) “the claimant has LCWRA on the basis of an assessment under part 5 of the ESA Regulations.”

would others agree with this?

Charles
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If the ESA was new-style, then yes, Reg 40(1)(a)(ii) would apply. The ADM (G1005) mentions a need for the ESA assessment to be “current”, but presumably a 4-week gap would normally be considered current. He would still have to wait 3 months for the LCWRA element to be included, but see below.

If the ESA was old-style (income-related or contributory), then Reg 40(1)(a)(ii) does not apply.
There may be a way out if he is now entitled to new-style ESA and it is backdated at least to the date UC was claimed. Assuming there is less than 12 weeks from the termination of the original ESA award and the start of the new ESA award, then he should be entitled to the support component within the ns-ESA from day 1, and therefore entitled to the LCWRA element in UC with no waiting period needed.
This could also be used to avoid the waiting period applying even where the original ESA award was new-style ESA.

acg
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Thanks Charles. It was old style income related ESA. Could he claim New Style ESA NI credits to keep LCWRA?

Would LCWRA not still apply because there has not been a new WCA to dsapply it?

Would he not still be entitled to ESA NI credits on the basis of his LCWRA?

Charles
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A WCA carried out for old-style ESA is done under different legislation, and cannot be used for UC. The only way to carry forward LCW/LCWRA from old-style ESA to UC is by using the provisions in Regs 19-21 of the UC (TP) Regs, which don’t apply here (due to the gap).

As he has now claimed UC, he cannot get credits for LCW/LCWRA unless he is actually entitled to ns-ESA. If there was a period between leaving prison and claiming UC, I believe he could claim credits based on the original WCA for that period. That would then allow you to use Reg 21 of the UC (TP) Regs to carry it forward for UC (but he would still have to wait 13 weeks from the date he left prison for the LCWRA element to be included in his UC).

EDIT: I’ve edited the above a couple of times, as I realised I made a mistake.

[ Edited: 9 Nov 2020 at 12:09 pm by Charles ]
AlexJ
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Hello,

I would appreciate your thoughts on this Charles (or indeed anyone else!):

His ESA ceased upon entering prison (as it should have done; see CPAG 941), however, did this terminate his credits for LCW? IRESA stops when someone goes into prison by virtue of sch. 5 of the ESA regs 2008, which prescribes an amount of ‘nil’ for a prisoner, but this doesn’t make any mention of terminating credits for LCW (https://www.legislation.gov.uk/uksi/2008/794/schedule/5/made). We know that credits for LCW can be paid without having an entitlement to ESA itself.

Therefore, although IRESA ended, could the NI credits for LCW under the 1975 Credits regs not have continued? Under s10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a determination that a person has limited capability for work is ‘conclusive for the purposes of any further decision’. Does this not therefore include decisions as to whether to award a claimant credits for LCW under regulation 8B of the Social Security (Credits) Regulations 1975?

If this chap was eligible for credits under the 1975 regs, then para 5 of s21 of the Universal Credit (Transitional Provisions) Regulations 2014 allows for a LCWRA element to be payable from the outset of the UC claim. Doesn’t it? 

I am far from being sure on this, hence all the question marks, but would appreciate anyone’s thoughts.

Cheers

Alex

Charles
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I considered that, but I don’t think it works due to the conditions in Reg 8B(2)(a)(iv)-(v) of the 1975 Regulations.

I have always worried about the second half of Reg 8B(2)(a)(iv) which could appear to give carte-blanche to get credits despite not fulfilling any other conditions of entitlement to ESA (and possibly could help when in prison as well), but the existence of subparas. (iva) and (v) prove that wrong. The second half of subpara. (iv) must simply mean that assuming the particular conditions set out in section 1(2)(a) of the WRA were fulfilled, would there have been entitlement to ESA.

[ Edited: 10 Nov 2020 at 03:16 pm by Charles ]
AlexJ
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Hi Charles,

Thanks for your response. I’m afraid you’ve lost me there. Could you explain again your interpretation of these regs if you have the chance? I hasten to add that I have no doubt that it’s my inability to grasp your point that’s the problem, not your explanation!

Many thanks

Alex

acg
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Thank you for your posts, Alex.

You explained so much more cogently than me what I had been hoping to say!

It really would seem like rough justice if many years of LCWRA could be expunged by 4 weeks absence in prison.

Charles
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AlexJ - 12 November 2020 01:50 PM

Hi Charles,

Thanks for your response. I’m afraid you’ve lost me there. Could you explain again your interpretation of these regs if you have the chance? I hasten to add that I have no doubt that it’s my inability to grasp your point that’s the problem, not your explanation!

Many thanks

Alex

I think this is entirely my fault - I’m terrible at explaining myself!

First step is to consider if entitlement to ESA ended when he went to prison. It seems to be accepted that having an applicable amount of nil, and thus no award of benefit, means entitlement ended.

Then we have to consider credits. It is not simply the case that anyone with LCW gets credits. LCW does not have any meaning outside of an ESA claim/award. The reason we say credits can be given for LCW - and even in cases where there is no entitlement to ESA - is because of the three subparagraphs in the Social Security (Credits) Regs 1975, Reg 8B(1)(a)(iv)-(v).
[Note the mention of “for the purposes of Part 1 of the Welfare Reform Act” in each subparagraph.]

Subparagraph (iva) is clearly not relevant here.

Subparagraph (v) is not relevant either. The days in prison would not have been days of LCW had he claimed ESA, as his claim would have been turned down.

Subparagraph (iv) starts with a vanilla case of someone actually entitled to ESA, which obviously isn’t relevant.

We’re left with the second half of subparagraph (iv) which refers to “... would have been [a day of LCW] had the person concerned been entitled to an employment and support allowance by virtue of section 1(2)(a) of the Welfare Reform Act”.
You could make an argument that that should include a prisoner (and actually anyone who fails any of the conditions of entitlement to ESA), but if so there would have been no need for subparagraphs (iva) and (v).
I believe it must therefore mean that credits can be given to a person who, if not for failing the conditions in section 1(2)(a) of the WRA, would have had entitlement to ESA.
But, if they would not have had entitlement for a different reason (e.g. being a prisoner, or due to time-limiting under section 1A of the WRA), then they are not entitled to credits under this subparagraph.

EDIT:
I’ve always had one issue with the above: how is someone who relies on the second half of subpara. (iv), but doesn’t actually make a claim covered? It really requires a combination of subparas. (iv) and (v), but I don’t really see how the regs allow for that!

[ Edited: 12 Nov 2020 at 05:24 pm by Charles ]
AlexJ
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I think I’ve finally got you Charles, many thanks for your patience in explaining this.

So, if for example, you had a person whose partner works, consequently they are no longer entitled to IRESA, and they didn’t have sufficient national insurance contributions to get CBESA, they won’t get paid any ESA. But they should nonetheless get credits under subpara. (iv) because, if they had paid sufficient NI contributions (or met the youth conditions), they would have got ESA. The only thing that’s stopping them getting ESA is the fact that they didn’t satisfy the contribution or youth conditions in 1(2)(a) of the WRA 2007.

But a prisoner, even if he had had sufficient contributions to get CBESA, wouldn’t have been paid ESA whilst in prison anyway, by virtue of S18(4)(b) of the WRA 2007, which prevents CBESA from being payable to claimants in prison: https://www.legislation.gov.uk/ukpga/2007/5/section/18. So it’s not his failure to satisfy the contribution/youth conditions in 1(2)(a) that’s stopping him getting ESA, it’s the fact that he’s in prison.

So consequently, he can’t benefit from subpara. (iv) because this subpara only gives entitlement to credits if a claimant would have qualified for ESA, had they satisfied the contribution conditions in 1(2)(a).

Phew. I think I follow you but correct me if I’m wrong.

Edited for clarity.

[ Edited: 13 Nov 2020 at 03:14 pm by AlexJ ]
Charles
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Yep, exactly right!