backdating irESA on a cESA claim for terminal illness

My patient claimed cESA in 2018 and had a nil decision as he had insufficient conts and his wife worked full time. He has been sending in med certs ever since despite getting texts that he doesn’t need to and has an ongoing live claim.  They have been surviving on just her low wages, his PIP and HB (in his name) and CTR.

He is now terminally ill and after checking and double checking they will be substantially better off on UC. It will also be beneficial when he dies as his wife is 60.

My dilemma is that I’m wondering if it’s possible to get irESA awarded and backdated to the end of July before they make their claim for UC? His wife was off sick on SSP only and they have good reason for late notification of coc’s as he was in ITU with Covid. (Wife is going back to work on 12th October)

I haven’t done this before but I’m thinking I’d need to put in the ESA supersession request before they claim UC, perhaps by letter recorded delivery?

Is this possible? Does anyone know how long it might take to get it all processed?

Many thanks

Your client doesn’t have and never had an award of ESA, so there is no scope for a supersession on a change of circumstances.

What happened was that your client made a claim for ESA which was refused, but because he has LCW, he has been awarded national insurance credits on that basis ever since. The DWP process these NI credits on the same system as is used to process ESA claims and awards for administrative convenience. Sometimes you will hear the DWP talk about “credits only ESA” but this is misleading as it is not ESA at all.

Because credits for LCW are not a form of ESA, there is no power for a “credits only” case to be converted into an award of irESA. This would require an entirely new claim for old-style ESA which is no longer possible.

In the early days of UC, it was sometimes the case that DWP would mistakenly process an ESA3 change of circumstances on a “credits only case” and would therefore make a new award of irESA to someone who was not legally allowed to claim it - however it has been long enough now that this shouldn’t still be happening.

I would suggest that your client’s interests are best served by getting onto UC with automatic LCWRA as soon as possible.

Thanks so much Elliot.

I think I had got caught up in that thinking of a “conts only claim!”. This makes it all easier as we can get a claim for UC in today.