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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

loss of LCWRA moving to UC

BC Welfare Rights
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My client’s ESA (SG) with SDP ended on 8/4 due to working over the Permitted Work rules. However, it seems that he was not notified that it had ended until 11/4 and he claimed UC that same day. UC said that the UC(TP) regs don’t apply as he was not in receipt of ESA on the day he claimed UC. Therefore, he will have to go through WCA again to get LCWRA. £285 p/m is being paid for loss of SDP.

Disability Advisor at Jbc helped him do a backdate request for UC back to 8/4 but this was refused and DA has assisted with requesting reconsideration against refusal of backdate. Case has now come to me. I suspect backdate may ultimately be refused for reasons given here, as request appears to have been done on 11/5, a day ‘late’ https://askcpag.org.uk/content/207219/too-late-for-a-backdate

We can appeal that, but any other suggestions? Thanks.

Vonny
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he would have lost lcwra due to esa ending for working over permitted work levels which meant he no longer had limited capability for work because he was working
have you checked that the permitted work earnings were calculated properly?

BC Welfare Rights
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Thanks Vonny. Not fully but from speaking to him it sounds like he was way over the Permitted Work levels for quite some time. However, for now at least, ESA has only been terminated since 8/4/22. I have just had sight of the UC backdate refusal which confirms as I suspected that: “We have considered your request but we cannot backdate your claim. This is because you asked for your claim to be backdated after your claim had been decided. Because you asked for backdating too late the law will not allow us to backdate your claim.” So, on to appeal and maybe UTT with that.

One aspect of this that interests me is that he was informed that his ESA claim had ended by post. In these circs there is always going to be a day or two delay in discovering that legacy benefit has ended and claiming UC. Which means that claimants are never going to benefit from the UC(TP) regs in order to preserve their LCWRA unless they can successfully backdate their UC claim.

Paul_Treloar_AgeUK
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BC Welfare Rights - 19 May 2022 03:34 PM

One aspect of this that interests me is that he was informed that his ESA claim had ended by post. In these circs there is always going to be a day or two delay in discovering that legacy benefit has ended and claiming UC. Which means that claimants are never going to benefit from the UC(TP) regs in order to preserve their LCWRA unless they can successfully backdate their UC claim.

I was highlighting this at a recent OSEF meeting (about mixed-age couples) and making the point that this cliff edge approach is unhelpful all around and seeking some concessions so that if, for example, someone claims UC within one month of a previous ESA award ending, they should carry over the LCWRA status. Wouldn’t hold my breath but we should try to keep pushing due to circumstances such as your client has found themself in.

Elliot Kent
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The “no backdating after 1 month” aspect is already at the UT awaiting determination by a three-judge panel next month, so there ought to be a cast iron resolution of that shortly thanks to Martin at CPAG.

My bigger worry in this case would be that there may be an ESA overpayment coming. Clearly if ESA end entitlement from the point at which the work limits were actually exceeded, your argument won’t work as it won’t be possible to have the UC claim backdated to a date where there was an ESA entitlement and the whole issue would be moot.

BC Welfare Rights
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Elliot Kent - 19 May 2022 05:09 PM

The “no backdating after 1 month” aspect is already at the UT awaiting determination by a three-judge panel next month, so there ought to be a cast iron resolution of that shortly thanks to Martin at CPAG.

Excellent, I was hoping that might be the case.

Elliot Kent - 19 May 2022 05:09 PM

My bigger worry in this case would be that there may be an ESA overpayment coming. Clearly if ESA end entitlement from the point at which the work limits were actually exceeded, your argument won’t work as it won’t be possible to have the UC claim backdated to a date where there was an ESA entitlement and the whole issue would be moot.

Yes, no way around this if it does happen. My one hope is that client is quite severely mentally ill and DWP has been very softly-softly to him in the past with a similar issue, recognising his vulnerability.

Paul_Treloar_AgeUK - 19 May 2022 04:07 PM

I was highlighting this at a recent OSEF meeting (about mixed-age couples) and making the point that this cliff edge approach is unhelpful all around and seeking some concessions so that if, for example, someone claims UC within one month of a previous ESA award ending, they should carry over the LCWRA status.

That is a really good suggestion and would make perfect sense.

 

Ianb
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Paul_Treloar_AgeUK - 19 May 2022 04:07 PM

I was highlighting this at a recent OSEF meeting (about mixed-age couples) and making the point that this cliff edge approach is unhelpful all around and seeking some concessions so that if, for example, someone claims UC within one month of a previous ESA award ending, they should carry over the LCWRA status. Wouldn’t hold my breath but we should try to keep pushing due to circumstances such as your client has found themself in.

I have long thought that. A one month period would match the rules for SDP transtional protection so there should be no fundamental objection.

The existing situation is manifestly unfair in that a claimant who doesn’t realise they need to claim UC before reaching pension age is significantly disadvantaged when compared to a person who does know (perhaps simply because they fortunate to already have a benefits adviser assisting them). They not only lose income but are potentially put through the indignity of having to have a WCA after reaching pension age.

benefitsadviser
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Another possible issue is that once lcwra is paid he loses most of his TP? Or am i getting this wrong?

Elliot Kent
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benefitsadviser - 20 May 2022 10:54 AM

Another possible issue is that once lcwra is paid he loses most of his TP? Or am i getting this wrong?

He would lose out on SDP compo because he would be entitled to the lower rate (£120) rather than his current rate (£285). However he would get the LCWRA element (£354.28) so would be better off by about £190 pcm.

Also, because this would all be backdated to the start of the award, the inclusion of the LCWRA would not have the effect of causing his SDP TP to erode. If he were simply to go through a WCA and have the LCWRA element included that way, it would be a new element which would cause the TP to be lost to erosion (as £354.28 > £285).