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Can UC treat all of ESA Support Component as Overpayment for 3 months?

Exmocab
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East Devon CAB

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My client was given Fit Notes from November 2020.
She claimed ESA in December 2020.
The first payment was made in February 2021 and the award was backdated to November 2020.
She started a UC claim on 13 January 2021 and the first payment was made on 19 January for the period 13 January – 12 February 21.
She had WCA on 12 March and was given LCWRA.

On 29 April she started getting the support component in her ESA, backdated to 6th February.
On 14 June she was told by UC that she had been overpaid £509.61 between 13 January and 12 April due to the support component being received from ESA and this is now being deducted from her UC.
UC accepted her LCWRA status as effective from 13 April, 3 months after she started claiming UC.

Is it correct that she can be expected to have to wait for a double 3 month waiting period effectively before she can get the benefit of her support group component?
I realise that if the support component had already been in payment when she started her UC claim then she would have been able to keep the benefit via the Higher Rate Work Capability component.

She has also been treated as overpaid by more than she actually received by ESA support component in the relevant period, presumably due to differences in the benefit calculations.  ESA told her they thought this should not be more than £386.40.

fraz
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Hi Exmocab

The LCWRA element should be include straight away with out the 3 assessment period wait under reg 28, as they’ve an ESA award with the support component.
Ask UC to have the assessment periods from the 6th of February recalculated to include the LCWRA element.

Fraz

Exmocab
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I had assumed that would be the case but we are taking it to appeal and there is no concession at all.
UC says that the WCA was for UC and that UC regs state there must be a 3 month wait after applying for UC
Rose

Ianb
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Very pleased you are taking this to appeal because this will test whether DWP are acting lawfully or not.

fraz - 21 October 2021 04:53 PM

..The LCWRA element should be include straight away with out the 3 assessment period wait under reg 28, as they’ve an ESA award with the support component.
Ask UC to have the assessment periods from the 6th of February recalculated to include the LCWRA element.

DWP guidance is clear that if a UC claimant starts being in the ESA Support Group after claiming UC then they do still have to serve the three month relevant period. What is not clear is whether or not there is any lawful basis for this.

See ADM https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864911/admf5.pdf

F5052 Where entitlement to the ESA support component begins after the award of UC, the claimant must serve the relevant period as in F5031 before the LCWRA element can be included in the UC award.

Exmocab - 21 October 2021 05:02 PM

UC says that the WCA was for UC and that UC regs state there must be a 3 month wait after applying for UC

I don’t think it is clear that the regulations say what UC say they do. The relevant period is three months beginning from the start of the claim, the date on which the claimant applies for the LCWRA element to be included in the award or the first day on which the claimant provides medical evidence of LCW. One question might be whether the evidence of LCW has to be provided specifically in connection with the UC claim.

More importantly I think the relevant period does not apply to an ESA claimant in the Support Group - see Regulation 28 (5)(b). Arguably the decision to put claimant in the Support Group ends any relevant period that may be running under UC.
(And presumably, if this is found to be true, LCWRA element would have to be included from the AP in which ESA Support Group starts.)
This is argued by Charles in this thread https://www.rightsnet.org.uk/forums/viewthread/14723

See also https://www.rightsnet.org.uk/forums/viewthread/17755/

Please be sure to let us know the outcome.

 

[ Edited: 21 Oct 2021 at 05:48 pm by Ianb ]
Mr Finch
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Ianb - 21 October 2021 05:34 PM

More importantly I think the relevant period does not apply to an ESA claimant in the Support Group - see Regulation 28 (5)(b). Arguably the decision to put claimant in the Support Group ends any relevant period that may be running under UC.

Agreed, but I would describe it as 28(5)(b) simply means whether there is or isn’t a relevant period, it simply no longer matters as the restriction on the LCWRA element does not apply to this claimant. The only possible issue might be if the ESA component started mid-UC-assessment period, does the element apply to that period, or only the next one.

Ianb
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Mr Finch - 25 October 2021 04:10 PM

The only possible issue might be if the ESA component started mid-UC-assessment period, does the element apply to that period, or only the next one.

I wasn’t sure about that which is why I put my comment on that point in parentheses. My instinct would be that as UC calculation is normally based on circumstances on last day of AP the LCWRA element should apply to the whole AP in which the ESA Support Group starts. There will of course be a pro rata ESA deduction.

Exmocab
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I was asked to let you know the result of this appeal, which several of you helped me with.

The hearing was adjourned yesterday with the Judge stating she would send a Direction Notice to the DWP to say they had to respond to my Submission.

Today my client was rung by the Decision Maker and told that they wanted to talk about yesterday’s appeal hearing.  The DM said that they have looked at the Submission and they agreed that I was right based on the legal information I submitted.  They have now reassessed her UC claim and overturned the original decision.
She should have been treated as LCWRA from the date of the ESA decision, and not have been asked to wait, financially, until 13 weeks after her OU application.  She therefore does not have to pay any more back to them and will be refunded in full.
The DM will notify the Case Manager and the appeal will now be closed.

My Submission:
It is common ground that X made a claim for ESA in December 2020, which was later backdated to November, when her Fit Notes commenced (medical evidence of unfitness to work).  She returned an ESA50 questionnaire (Capability for Work) in early February 2021 and then received her first payment of ESA at the basic rate.

13 January 2021: she started a Universal Credit claim and received the first payment on 19 February for the period 13 January – 12 February 2021.

12 March 2021: she was assessed for ESA, in a Work Capability Assessment following which she was assessed as having Limited Capability for Work and Work Related Activities (LCWRA) and therefore entitled to the ESA Support Component.

She received this backdated to 6 February as this was 13 weeks after starting her ESA, as per regulations.

It was allowed in her Universal Credit calculations until the assessment period 13 April 2021 to 12 May 2021.


This appeal hinges on the interpretation of Regulation 28 (5) (b)(i) of the Universal Credit Regulations.

This states:

‘Regulation 28
(5) Paragraph (1) also does not apply if—
(a)the claimant is terminally ill; or
(b)the claimant—
(i) is entitled to an employment and support allowance that includes the support component or the work-related activity component’

In its Advice for Decision Makers, the DWP guidance is clear that if a UC claimant starts being in the ESA Support Group after claiming UC then they do still have to serve the three month relevant period for Universal Credit. What is not clear is whether or not there is any lawful basis for this.

Firstly, the relevant three month period is surely the three months beginning from the start of the claim for Limited Capability for Work, or the first day on which the claimant provides medical evidence of LCW.  This was accepted by ESA as beginning on 6 November 2020.  The Limited Capability for Work questionnaire was returned to ESA, not Universal Credit, and the assessment then arranged by ESA. 

The DWP is not contesting that the evidence of LCW has to be provided specifically in connection with the UC claim and has accepted the evidence from ESA.

There is no legal basis for stating that the three month period has to be in connection with UC claim specifically.

Secondly, I submit that the relevant period of three months for Universal Credit claimants does not apply to an ESA claimant in the Support Group

Regulation 28 (5)(b)(i) says: “[The waiting period] also does not apply if ... the claimant ... is entitled to an employment and support allowance that includes the support component”.

The logical interpretation of this is that even if the waiting period for Universal Credit is already in progress, it would end when entitlement to the support component starts.

The decision to put the claimant in the Support Group ends any relevant period that may be running under Universal Credit, and so the LCWRA element would have to be included in the Universal Credit assessment from the assessment period in which the ESA Support Group starts.

This would therefore mean that the Higher rate Work Capability component should also be included in the Universal Credit calculation from the assessment period in which the ESA Support group starts.

The illogicality of the DM position is highlighted by the fact that following their interpretation of Regulation 28(5)(b) leads to the ridiculous and unjust situation where the claimant is held to have been overpaid by more - £509.61- than she was paid in additional ESA - £386.40 – in the period January 2021 – 13 April 2021.

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Ianb
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Thank you for sharing.

That’s an excellent result although I am disappointed that you haven’t had a tribunal ruling because I doubt that, even though they have recognised the argument in your client’s case, DWP will now correct their guidance.

Are UC now applying LCWRA element from the start of the AP in which client moved into ESA Support Group? Are they deducting ESA as if client got Support Group rate for the whole AP or are they doing pro rate calculation for period at assessment rate and period at Support Group rate.? Or are you still waiting to see the calculations?

[ Edited: 30 Nov 2021 at 07:44 pm by Ianb ]
Exmocab
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Still waiting to see the calculations: I will share them when we receive them - the Judge was particularly interested in this, too!

Exmocab
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I’ve now received a copy of the UC response and reasoning:

About Your Appeal
We’ve looked again at our decision on your
Universal Credit
30/11/2021
Appeal Reconsideration – Universal Credit
I am revising the decision of 12/06/2021 that
stated you had been overpaid £509.61 for the
period 13/01/2021 to 12/04/2021 following the
award of ESA (conts) with support group
component.
My revised decision is that following the ESA (C)
decision that LCWRA applies and you were given
the support group component you are entitled to
the LCWRA element for UC from 06/02/2021 which
covers the assessment period 13/01/2021 to
12/02/2021 onwards. You had provided medical
evidence from the start of your UC claim on
13/01/2021. Medical evidence had also been
submitted from the start of your ESA claim on
07/11/2020 and once you were found to be entitled
to the Support group component your relevant
period for ESA was satisfied from 06/02/2021.
Under UC 2013 regulation 28 5 1 (b) the relevant
period for UC does not apply if you are entitled to
the ESA support component and therefore from
06/02/2021 you were entitled to the LCWRA
element of UC.
This means that there is no overpayment and
arrears may be due to you for the AP’s 13/01/2021to 12/02/2021, 13/02/2021 to 12/03/2021 and
13/03/2021 to 12/04/2021.
We have made a
decision about your
Universal Credit.
This is your Revised
Decision Notification.

Ianb
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Thanks for updating.