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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Permitted work on ESA and moving to UC

CA Adviser
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Cl is on income-related ESA with the support component, HB and CTR. No PIP. He has done some self-employed work and sent in a PW1 to ESA. He has heard nothing further. It sounds as though he may be found not to be entitled to income-related ESA, depending on how they treat the earned income as it appears to be over the permitted work higher limit. He has the offer of further work, £200pw, around 16 hours pw. This is clearly not compatible with ESA permitted work. So he is considering claiming UC now whilst still in receipt of ESA so that his LCWRA is carried across to UC. However, if he does this work, am I right in thinking he will be treated as not having LCW as his earnings will be above the 16 x NMW threshold?
So no LWCRA element and no work allowance.
He is aware that he could be subject to a new WCA at any point if DWP think his work indicates that his health problems have improved.

Would appreciate any thoughts.

Elliot Kent
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Your client has come up with quite a shrewd plan. If you are earning over the relevant threshold, this prevents a new assessment for LCW/LCWRA being conducted but if you have already been assessed as LCW/LCWRA, you don’t lose that status as your earnings increase. As he already has a LCWRA assessment, he would keep it when he claimed UC and would not automatically lose it because of his work. He would therefore keep his additional element and work allowance when the work started (as well as taking advantage of the fact that UC SA + LCWRA is higher than ESA with the support component and EDP).

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It certainly seems sensible to claim UC now whilst on ESA with the support component so that LCWRA transfers across to UC, before he is no longer entitled to ESA.
So UC would not treat him as not having LCW because his earnings are above the threshold and he doesn’t fall into any of the exceptions? CPAG p1015-1016 says you can work and earn above the threshold without automatically being treated as not have LCW if you have already been assessed as having LCW or LCWRA under the UC system (not for ESA outside the UC system). It admits that it is not clear whether the rules on work should apply to those transferring to UC from ESA permitted work.

Thank you for your input

Elliot Kent
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If the decision maker really despised your client they could argue (I think this is what CPAG is getting at):
1. Reg 41(2) UC Regs precludes a WCA for a claimant earning above the threshold and deems the claimant not to have LCW in circumstances except where they are getting PIP, have certain sorts of deemed LCW or the proposed assessment is for the “purposes of reviewing a previous determination that a claimant has limited capability for work or for work and work-related activity that was made on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations”.
2. The ESA Regulations means the ESA Regulations 2013 - see reg 2 UC Regs - and not the ESA Regulations 2008.
3. Your client has the benefit of an LCWRA assessment under the 2008 regulations and not the 2013 regulations. His entitlement to the LCWRA element of UC arises through the deeming provision of reg 19 of the UC TP Regs.
4. A proposed WCA for your client would not then amount to an assessment for the “purposes of reviewing a previous determination” under either the UC Regs or the ESA Regs as defined and would therefore be impermissible.
5. Consequently none of the exceptions applies with the result that the deeming provision under reg 41(2) bites and your client is deemed not to have LCW.

In the practical reality, I am doubtful that this argument would be raised. It tends to be that an LCWRA assessment is treated the same way whether it arose through “old” or “new” style ESA - and rightly so as there is no substantial practical or legal difference between them. Advice for Decision Making does not suggest that decision makers should go out of their way to differentiate between the consequences of these sorts of things.

Charles
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CA Adviser
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I hadn’t seen this thread. Thank you both.

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If ESA entitlement had ended shortly before he claimed UC because of his earned income, but there was no new WCA decision, his LCWRA would still have carried over to UC?

Elliot Kent
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If his ESA is ended because of exceeding work rules, this has the consequence that he is deemed not to have LCW which in turn means that he doesn’t get the element when he claims UC.

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Thank for your help.

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Further question. If the cl claims UC now, with the LCWRA in place, and is subsequently found not to have LCW for ESA because of his earned income, presumably UC are likely to start a new WCA- but they can’t just follow ESA’s decision?

unhindered by talent
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CA Adviser - 03 February 2021 10:26 AM

Further question. If the cl claims UC now, with the LCWRA in place, and is subsequently found not to have LCW for ESA because of his earned income, presumably UC are likely to start a new WCA- but they can’t just follow ESA’s decision?

Simon Osborne from CPAG said:

“A finding that the claimant does not have LCW or LCWRA for new-style ESA does not in fact automatically apply to UC – there is no such rule. However, for a claimant who does not already have LCW for UC purposes, it will mean that no WCA is applied to the UC claim at all, unless ‘there is evidence to suggest’ that there has been a relevant change in circumstances or that the ESA finding was made on the basis of a mistake about, or ignorance of, a material fact. For a claimant who already has LCW for UC purposes, the ESA finding will enable (on the same grounds) a new WCA to be applied. The same outcome as for ESA may be thought likely, but is not mandatory.”

Does that help?

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Thank you for this, been on leave and missed it.