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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Transfer of LCWRA to UC

Pete at CAB
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Cl has had ESA stopped after exceeding hours/income criteria for ESA Permitted work (by only £2.00pw). The Cl has been assessed as having LCWRA under the ESA regs so would the LCWRA transfer automatically to UC from the first assessment period?

Reg27 ESA Regs just says that the assessment of LCWRA under the ESA Regs is sufficient to trigger the LCWRA component of UC, could it be said that the breach of the Permitted Work criteria is not in itself a reliable indication that cl. no longer has LCWRA, after all no actual assessment has taken place?

Dan Manville
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No it wouldn’t. They would need to be in receipt of ESA on the day they claimed UC.

Guess what my next post is going to be about…

Elliot Kent
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Dan Manville - 12 May 2022 02:59 PM

They would need to be in receipt of ESA on the day they claimed UC.

LCW credits would work as well.

The issue however is that exceeding permitted work limits ends both the ESA entitlement (reg 40 ESA) and the LCW assessment (reg 44 ESA) and therefore there is no ongoing entitlement to either ESA or credits and the element does not transfer.

Pete at CAB
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Thanks, I hadn’t spotted Reg 44!

Charles
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Elliot Kent - 12 May 2022 03:01 PM

LCW credits would work as well.

The issue however is that exceeding permitted work limits ends both the ESA entitlement (reg 40 ESA) and the LCW assessment (reg 44 ESA) and therefore there is no ongoing entitlement to either ESA or credits and the element does not transfer.

Would you agree though that a ns-ESA claimant who exceeds the permitted work limit, and is therefore treated for ESA purposes as not having LCW (ESA Regs 2013 Reg 38), can still rely on the LCW assessment for the purposes of UC, under the UC Regs, Reg 39(1)(a)?

Perhaps more straightforward is someone who has been assessed under the ESA Regs 2013 as having LCWRA, but then exceeds the permitted work limit, do they still satisfy UC Regs, Reg 40(1)(a)(ii)? (Reg 38 of the ESA Regs 2013 doesn’t even affect the LCWRA assessment.)

Pete at CAB
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Thanks everyone, I have been doing a bit more research and I was wondering if I could test out my idea-

First thing to say is that the ESA only stopped towards the end of last month so within the 12 week rapid reclaim period as set out in Reg145 and subsequently in The Employment and Support Allowance (Amendment of Linking Rules) Regulations 2012 https://www.legislation.gov.uk/uksi/2012/919/regulation/5/made

Reg 44 of the ESA regs says that a claimant who is deemed to be working is ‘treated’as not having LCW

Reg 5 of the Amendment regs says

(5) After regulation 35 (certain claimants to be treated as having limited capability for work-related activity) insert—
“Relevant linked cases – limited capability for work-related activity
35A.  A claimant is to be treated as having limited capability for work-related activity where–

(a)they fall within case 1, as defined in regulation 7(1B)(a); and
(b)in respect of the earlier period of limited capability for work referred to in regulation 7(1B)(a)(i), they had been entitled to a support component under sections 2(2) or 4(4) of the Act.


Case 1 states that

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under sections 2(2), 2(3), 4(4) or 4(5) of the Act) in the earlier period of limited capability for work, and
(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by virtue of a determination that the claimant did not have limited capability for work;

It may be significant that case 2 seems to distinguish between ‘determined not to have LCW’ and ‘treated as not having LCW’

“the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of a determination that the claimant did not have, or was treated as not having, limited capability for work”

As the cl has not had an actual ‘determination’ (ie a WCA) but is only treated as not having LCW/LCWRA would they get the LCWRA reinstated immediately on a rapid reclaim if ESA?

I know this is a pretty obscure argument and may be wrong but I would be grateful for any observations