ESA to UC problem

Hi organic

Your question is outside the re-mit of the forum and we would advise you to seek help from your local Welfare Rights Organisation: You can find your local Welfare Rights Organisation to help you with advice by clicking on the link below and putting in your post code, it will then come up with a MAP with a list of agencies. advicelocal.uk .

I will try and answer your query;

As you are getting New-Style ESA then this should continue in payment - with UC as a top up - and the equivalent UC Element to the Component that is included with their ESA claim should be included in their UC assessment.

Some claimants are being told that if their ESA review assessment is overdue then no equivalent Element can be added into their UC award until that assessment is done - which could be several months: this is incorrect.

The issue is that some claimants have found that the UC department are refusing to include the LCW or LCWRA Element from the start of the UC award, on the grounds that the claimant’s review Work Capability Assessment is overdue – and therefore their ‘unfit for work’ status on their ESA is not carried forward to their UC claim.

What is important to note is that, once a decision has been made that a claimant is in the WRAG or the Support Group, then, even if the recommended review date comes and goes without the claimant being put through another WCA, the DWP cannot take away that status (ie supersede the decision) simply because someone has not yet been re-assessed! 

Regulation 6 (2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that an ESA decision may be superseded if a Healthcare Professional has provided the decision maker with medical evidence. 

In other words, a decision maker cannot remove the WRAG or Support Component unless a further WCA has taken place. 

Regulation 19 of the UC (Transitional Provisions) Regulations 2014 makes it clear that those who move from ESA onto UC (and who have not been found fit for work), are to have:The LCW Element included in their UC assessment from the start of their UC award if they were in receipt of the Work Related Activity Component in their ESA award, or The LCWRA Element included in their UC assessment from the start of their UC award if they were in receipt of the Support Component in their ESA award.This means that the work capability decision MUST be transferred across from an ESA award to a UC one.

Regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (for IR-ESA) and Reg 26 of the Universal Credit, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013 (for UC and New-Style ESA), both say that decisions on the WRAG/Support group for ESA and on the Limited Capability for Work/Work Related Activity in UC cannot be superseded - ie taken away - without evidence from a Healthcare Professional.

Therefore, even where the WCA review date has passed, the DWP cannot refuse to include a LCW /LCWRA Element in the UC assessment until a review WCA has been completed ie evidence from a Healthcare Professional received.

In addition, it would be unfair and discriminatory to penalise a claimant simply because, due to administrative delays within the DWP / the company contracted to organise and carry out Work Capability Assessments, they have not been reassessed on the planned date.

If the claimant struggles to get the DWP to accept that their UC award should include the LCW/LCWRA Element from the start they should request a Mandatory Reconsideration and may find it useful to quote what Neil Couling stated in a letter in December 2017: 

"An ESA claimant may have a change in their circumstances that means that he or she now has to claim UC. Providing that their claim is continuous, and there has been no change in their health condition, a determination made in the ESA claim that the claimant has a limited capability for work (LCW), or limited capability for work related activity (LCWRA), will be applied to the UC claim.'

We are finding that when someone moves from ESA to UC, the UC dept generally refer them for a review of their work capability ie a Work Capability Assessment - this includes those who may only just have had one for their ESA award, and those who may not be due a review for several years.

The UC dept are able to review someone's work capability at any time because the UC Regulations allow the them to refer a claimant for a new Work Capability Assessment.
So there is little that can be done accept go along the DWP's request ie complete a medical questionnaire / attend a medical. 

However, the UC Regulations do not require the UC dept to refer all ESA to UC claimants for a review - they should use their discretion, and where you feel this has been 'fettered' the claimant could ask the UC dept to review that decision.

Gary

Hi organic

You need to get assistance from a Welfare Rights Organisation.

In the first instance you should write a letter and post it on your Journal. The following sample letter comes from Housing System:
Claimant’s Name
Claimant’s Address

DWP Office


Date:

Dear Sir / Madam
Re: Universal Credit Award
My NIno:

I claimed Universal Credit / joined a claim for Universal Credit as a partner on date.
I am writing to request that you include the Limited Capability for Work / Limited Capability for Work Related Activity Element in the assessment of my Universal Credit award.

This is because I was on ‘New-Style’ ESA and in receipt of the Work Related Activity / Support component when I made my claim / joined a claim for Universal Credit, and under Regulation 39(1)(a) -LCW or Regulation 40(1)(a)(ii) -LCWRA of the Universal Credit Regulations (2013)I should have the Limited Capability for Work / Limited Capability for Work Related Activity Element automatically applied as I have been found to have a Limited Capability for Work / Limited Capability for Work Related Activity on the basis of an assessment made under Part 4-LCW or Part 5-LCWRA of the Employment and Support Regulations 2013.

Please note this also means that I do not have to wait a ‘relevant period’ nor need to attend a Work Capability Assessment in respect of the Element, and should not be placed in the ‘all work related activity’ group.

Add where needed:

Please ensure the Element is included back to the date I made my claim / joined a claim for Universal Credit.


Yours faithfully

You need to adapt the letter where it is underscored, if your request gets turned down then apply for a MR quoting some of the details in my previous post.

As stated previously, the UC dept are able to review someone's work capability at any time because the UC Regulations allows them to refer a claimant for a new Work Capability Assessment.
So there is little that can be done accept to go along the DWP's request ie complete a medical questionnaire / attend a medical.

Gary

Hi organic

I have been looking through the members only guides and came across a brief guide to the process of moving from employment and support allowance to universal credit: www.benefitsandwork.co.uk/?dlp=61ec3cf791a7a which may help you.

Gary