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Credits-only NSESA: if they claim UC, will they get LCWRA right away?
A colleague has set out this scenario and I think we need help!
‘My client is currently in receipt of the enhanced rate daily living component and enhanced rate mobility components of PIP. She and her husband have a joint claim for tax credits currently, although they would be better off on Universal Credit if LCWRA is applied to the claim. She is undergoing chemotherapy, so she should be treated as having LCWRA.
My client and her husband would be significantly worse off in the assessment phase on Universal Credit (by approximately £60/week) and I therefore wanted to ensure that LCWRA is applied from the start of the claim. Client has made a claim for New Style ESA but does not satisfy the NI conditions for the relevant tax year. She receives NI credits only and was placed in the Support Group in September.
If she claims Universal Credit, will LCWRA apply from day 1 of the claim?
I understand Reg 40(1)(a)(ii) UC Regulations 2013 should apply and so the WCA status would carry over. However, I want to ensure that Reg 28 UC Regulations 2013 does not apply and that an assessment rate does not apply. Reg 21 UC (T&P) Regulations 2014 references credits only cases but refers to ‘old style ESA’.
Would this Regulation also cover a credits-only New Style ESA claim, meaning she would have LCWRA from the start of her claim?’
[I wondered if this guidance applies -
Claimant would have LCWRA
M6225 Where 1. an award of UC is made to a claimant who was not entitled to old style ESA on the relevant date (see M6221 – which says the relevant date is the UC claim date)
and 2. before the relevant date, it had been determined that the claimant would have LCWRA
and 3. the notional assessment phase had ended the claimant is treated as having LCWRA without the need for the WCA .
Note: See M6230 - M6232 for guidance where the notional assessment phase had not ended when ESA was terminated. See DMG Chapter 42 for guidance on ESA and LCW, and Chapter 44 for guidance on when the assessment phase ends.
1 UC (TP) Regs, reg 21(1) & (4); WR Act 12, s 19(2)(a); UC Regs, reg 27(1)(b) & (3)]
Thanks all!
Confused of Derbyshire
A colleague has set out this scenario and I think we need help!
‘My client is currently in receipt of the enhanced rate daily living component and enhanced rate mobility components of PIP. She and her husband have a joint claim for tax credits currently, although they would be better off on Universal Credit if LCWRA is applied to the claim. She is undergoing chemotherapy, so she should be treated as having LCWRA.
My client and her husband would be significantly worse off in the assessment phase on Universal Credit (by approximately £60/week) and I therefore wanted to ensure that LCWRA is applied from the start of the claim. Client has made a claim for New Style ESA but does not satisfy the NI conditions for the relevant tax year. She receives NI credits only and was placed in the Support Group in September.
If she claims Universal Credit, will LCWRA apply from day 1 of the claim?
I understand Reg 40(1)(a)(ii) UC Regulations 2013 should apply and so the WCA status would carry over. However, I want to ensure that Reg 28 UC Regulations 2013 does not apply and that an assessment rate does not apply. Reg 21 UC (T&P) Regulations 2014 references credits only cases but refers to ‘old style ESA’.
Would this Regulation also cover a credits-only New Style ESA claim, meaning she would have LCWRA from the start of her claim?’
[I wondered if this guidance applies -
Claimant would have LCWRA
M6225 Where 1. an award of UC is made to a claimant who was not entitled to old style ESA on the relevant date (see M6221 – which says the relevant date is the UC claim date)
and 2. before the relevant date, it had been determined that the claimant would have LCWRA
and 3. the notional assessment phase had ended the claimant is treated as having LCWRA without the need for the WCA .
Note: See M6230 - M6232 for guidance where the notional assessment phase had not ended when ESA was terminated. See DMG Chapter 42 for guidance on ESA and LCW, and Chapter 44 for guidance on when the assessment phase ends.
1 UC (TP) Regs, reg 21(1) & (4); WR Act 12, s 19(2)(a); UC Regs, reg 27(1)(b) & (3)]
Thanks all!
Confused of Derbyshire
Hi Andrew,
I think it’s arguable that reg 21 of the TP regs doesn’t just refer to old style ESA. Unlike regs 19 and 20, it doesn’t refer to old style ESA in the title (otherwise it would be titled ‘Other clamaints with limited capability for work: credits only cases who would otherwise have transitioned from old style ESA’ (or something like that).
A more solid argument is that when para (4) says: ‘Where, on or before the relevant date, it had been determined that the claimant would have limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act) if he or she was entitled to old style ESA’. this can apply whether your credits are via new style or old style ESA.
The test for whether you have LCWRA is the same under both the 2008 ESA Regs and the 2013 ESA Regs. Therefore, someone getting credits for LCW having made a claim for new style ESA & who is found to have LCWRA through that process, is someone who would have have had LCWRA within the meaning of the Welfare Reform Act 2007 if they were entitled to old style ESA.
The fact they cannot get old style ESA for other reasons (no new claims) doesn’t matter.
In real life though, I haven’t got any examples of daring to do this (in case it didn’t work…). So you might have to prepare the clients to challenge their UC entitlement if they do not get LCWRA straight away.
I’m assuming that you are expecting the chemo route to LCWRA to be straightforward.
‘A more solid argument is that when para (4) says: ‘Where, on or before the relevant date, it had been determined that the claimant would have limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act) if he or she was entitled to old style ESA’. this can apply whether your credits are via new style or old style ESA.’
Thanks, yes, that’s how I was reading it.
Anyone want to disappoint me?