Forum Home → Discussion → Work capability issues and ESA → Thread
start date for support/lcwra component nsESA
reference needed to clarify
Cl claims UC Aug 2020 and submits fit notes
Subsequently claims nsESA Jan 2021
Cl awarded LCW March 2021
MR and Appeal change this to LCWRA in Jan 2022
UC backdated LCWRA from the 4th AP after submitting fit notes (November 2020)
ESA backdate the additional amount to the 14th week from January (April 2021)
Cl already served the relevant period on UC so shouldn’t the extra on ESA be payable from the start (or minus any waiting days)
-it doesn’t change the total backdate (UC+ESA) but out of interest if someone could clarify
reference needed to clarify
Cl claims UC Aug 2020 and submits fit notes
Subsequently claims nsESA Jan 2021
Cl awarded LCW March 2021
MR and Appeal change this to LCWRA in Jan 2022
UC backdated LCWRA from the 4th AP after submitting fit notes (November 2020)ESA backdate the additional amount to the 14th week from January (April 2021)
Cl already served the relevant period on UC so shouldn’t the extra on ESA be payable from the start (or minus any waiting days)
-it doesn’t change the total backdate (UC+ESA) but out of interest if someone could clarify
Tara see reg 16(1)(h) ESA regs 2013 - https://www.legislation.gov.uk/uksi/2013/379/regulation/16 i.e. yes.
Am I missing something but I don’t see how that. The regulation seems to simply say that if already found to have LCW for UC then the claimant should also be treated as having LCW for ESA. Can’t see how that impacts payment of the ESA Support component.
For LCWRA the similar regulation is 31 (1)(d) which says they are to be treated as having LCWRA for ESA id already treated as such for UC.
However that says nothing about payment of the Support component. For that don’t we have to look to what defines the end of the ESA ‘assessment phase’ because the Support component is payable only when the assessment phase has ended.
Regulation 5(1) says the assessment phase ends at the end of the relevant period and that the relevant period is 13 weeks from the start of the assessment period as defined in regulation 24(2)(a) of the Welfare reform Act 2007 or or where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.
Regulation 24(2)(a) of the WRA says “the assessment phase starts with the first day entitlement to ESA,
I’m not clear what the meaning of or where that day immediately follows an extended period of sickness, the first day of the extended period of sickness is and how that impacts but otherwise the Support Group would indeed appear to only be payable from 14 weeks after the start of the ESA claim.
[ Edited: 16 Feb 2022 at 05:38 pm by Ianb ]
Am I missing something but I don’t see how that. The regulation seems to simply say that if already found to have LCW for UC then the claimant should also be treated as having LCW for ESA. Can’t see how that impacts payment of the ESA Support component.
For LCWRA the similar regulation is 31 (1)(d) which says they are to be treated as having LCWRA for ESA id already treated as such for UC.
However that says nothing about payment of the Support component. For that don’t we have to look to what defines the end of the ESA ‘assessment phase’.
Regulation 5(1) says the assessment phase ends at the end of the relevant period and that the relevant period is 13 weeks from the start of the assessment period as defined in regulation 24(2)(a) of the Welfare reform Act 2007 or or where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.
Regulation 24(2)(a) of the WRA says “the assessment phase starts with the first day entitlement to ESA,
I’m not clear what the meaning of or where that day immediately follows an extended period of sickness, the first day of the extended period of sickness is and how that impacts.
Actually your right Ian re Reg 31(1)(d) - see below
‘Where a claimant entitled to UC has LCW for UC, that applies to new-style ESA. Also, having LCWRA for UC automatically applies to new-style ESA.16 In any case, it might be expected that evidence from the UC assessment would be used ESA assessment, with the same outcome likely though not mandatory’.
https://cpag.org.uk/welfare-rights/resources/article/uc-and-wca-%E2%80%93-some-questions-and-answers
does this help? is there a UC equivalent reg?
Regulations 7 and 8 amend respectively the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I.1999/991) and the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (S.I.2013/381). This is to ensure that decisions awarding components of ESA from week 14 of the ESA claim to be revised at any time where the claimant previously had an extended period of sickness lasting 13 weeks. It is also to ensure that the effective date of supersession of ESA decisions made on the basis that a claimant has limited capability for work or work-related activity, is the day after the last day of the relevant period as defined by the amendments made by regulations 4 and 5.
[ Edited: 17 Feb 2022 at 09:43 am by Tara CAC ]The question may be academic. The prevention of duplication of payments (abatement) rules in SSAA s74(2)&(4) should have stop any arrears of ESA inc. the ‘support component’ from being paid because UC was already in payment (because the WCA was prompted and decided under the earlier UC claim rather than the later ESA claim). ESA counts as income for UC.
You may need to check when the UC WCA decision was made but it looks from the info. provided that the ‘support element’ (LCFW&WRA; element) was included from the 4th UC AP. Therefore, no arrears of ESA were due and payment of ESA should only have start from a date that would prevent a duplicate payment occurring and it would then be taken into account as income in UC from that date.
A frequent issue with UC (and other MTBs) is the failure of the ‘prevention of duplication of payments’ process and claimants receiving arrears of ESA, CA etc generating an overpayment.
I think Tara acknowledged in the opening post that it is academic as it makes no difference to the amount of money the claimant received but nonetheless wondered what is legally correct.
Very interested to note your comments about avoiding duplicating payment. It can be, as you say, a problem with UC when CA awards are made or ESA claims updated.
[ Edited: 17 Feb 2022 at 12:39 pm by Ianb ]I think Tara acknowledged in the opening post that it is academic as it makes no difference to the amount of money the claimant received but nonetheless wondered what is legally correct.
Very interested to note your comments about avoiding duplicating payment. It can be, as you say, a problem with UC when CA awards are made or ESA claims updated.
With regard to the original question the answer will also revolve around failures in process. If the WCA determination for UC had already been made before the claim for ESA then it should be applied to ESA.
As with duplication of payments in practice there appears to be little or no co-ordination between UC and other benefits - hence, for example, UC insisting that a new WCA has to be applied even though a WCA determination has already been made for ESA prior to the UC claim. Or, as may have happened in Tara’s case, the UC WCA process had started but not been completed before the ESA claim was made so the WCA process is then initiated again for the ESA claim and two WCA’s proceed in parallel universes (and no amount of telling them can stop it)!
The question may be academic. The prevention of duplication of payments (abatement) rules in SSAA s74(2)&(4) should have stop any arrears of ESA inc. the ‘support component’ from being paid because UC was already in payment (because the WCA was prompted and decided under the earlier UC claim rather than the later ESA claim). ESA counts as income for UC.
You may need to check when the UC WCA decision was made but it looks from the info. provided that the ‘support element’ (LCFW&WRA; element) was included from the 4th UC AP. Therefore, no arrears of ESA were due and payment of ESA should only have start from a date that would prevent a duplicate payment occurring and it would then be taken into account as income in UC from that date.
A frequent issue with UC (and other MTBs) is the failure of the ‘prevention of duplication of payments’ process and claimants receiving arrears of ESA, CA etc generating an overpayment.
I’ve had numerous cases of backdated CA and never seen this used!
I think Tara acknowledged in the opening post that it is academic as it makes no difference to the amount of money the claimant received but nonetheless wondered what is legally correct.
Very interested to note your comments about avoiding duplicating payment. It can be, as you say, a problem with UC when CA awards are made or ESA claims updated.
Thanks, yes purely academic in this case but it got me thinking about if perhaps a partners earnings reduced UC to 0, UC would remain open pending a WCA decision, if earnings or other deductions left 0 UC there would be a financial implication to when the extra is payable.
I’ve not had many cases on nsESA being claimed after UC, never mind follow up from that case 1yr+ later!
A frequent issue with UC (and other MTBs) is the failure of the ‘prevention of duplication of payments’ process and claimants receiving arrears of ESA, CA etc generating an overpayment.
I’ve had numerous cases of backdated CA and never seen this used!
That’s great news for your clients but is something to be aware of - failure of the process can generate substantial overpayments. Some times DWP only pick up on the problem and issue an overpayment decision many months later.
Peter, are you sure the abatement rules apply to ns-ESA? Reg. 8(1)(l) of the SS(PAOR) Regs refers to ESA, but the definition of ESA in Reg. 1 only includes os-ESA.
Peter, are you sure the abatement rules apply to ns-ESA? Reg. 8(1)(l) of the SS(PAOR) Regs refers to ESA, but the definition of ESA in Reg. 1 only includes os-ESA.
Yes -hmmm
Equally only to os-JSA? ADM Ch. D1247 also refs. to Reg. 8(1)(l).
An omission to make appropriate amendments to the PAOR Regs. following introduction of ns-ESA/JSA?
It can’t be the intention to pay someone twice?
Could make for an interesting challenge to an overpayment decision!
Equally only to os-JSA? ADM Ch. D1247 also refs. to Reg. 8(1)(l).
An omission to make appropriate amendments to the PAOR Regs. following introduction of ns-ESA/JSA?
It can’t be the intention to pay someone twice?
Could make for an interesting challenge to an overpayment decision!
Yes, I think also only os-JSA would be covered.
They only included the definition of ESA in the PAOR Regs after ns-ESA/JSA had been introduced.
This was done because most of those Regs only apply to os-ESA/JSA (ns-ESA/JSA are covered instead by the Social Security (Overpayments and Recovery) Regulations 2013).
They must have overlooked the fact that the abatement rules were left in the PAOR Regs.
I don’t think it would mean no overpayment could be raised, as s. 71ZB of the Administration Act still applies. It just couldn’t be set off against the ns-ESA/JSA.
I’ve not had many cases on nsESA being claimed after UC, never mind follow up from that case 1yr+ later!
We see it quite often when people are getting SSP so cannot claim ns-ESA but can claim UC. When SSP ends, although there is no financial gain from claiming ns-ESA it can be sensible to claim it as a protective measure against a future change of circumstances that could end entitlement to UC (although if possible sometimes best to delay claiming ns-ESA until new tax year to avoid a tax liability).
I don’t think it would mean no overpayment could be raised, as s. 71ZB of the Administration Act still applies. It just couldn’t be set off against the ns-ESA/JSA.
Which seems more consistent with what is seen in practice. Full payment of CA or ns-ESA arrears and then a UC overpayment to be recovered.
With CA and os-ESA getting payments due calculated always took time but generally seemed to work well for clients. But then with old style benefits if DWP got it wrong they couldn’t recover the overpayment whereas with UC/new style benefits any overpayment is recoverable which rather reduces the incentive to get things right first time around.