Hi Clarebear
Your case manager is incorrect.
If you are getting Contributory ESA / 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 your ESA claim should be included in your 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.
We have become aware of a problem affecting some Universal Credit claimants who:
* have moved from Income Related ESA onto Universal Credit, due to a change in their circumstances other than being found fit for work; or
* are receiving Contributory ESA and have needed to claim a top up of Universal Credit.
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.
We believe that this is wrong!
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of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that an ESA decision may be superseded if a Healthcare Professional has provided the decision maker with medical evidence.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.
1. 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.
2. 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.
* the claimant is getting Contributory (or New-Style) ESA then the equivalent component that was included with their ESA claim should be transferred to their UC claim ie:
* If they were getting the Work Related Activity Component in their ESA, their UC award should include a Limited Capability for Work (LCW) Element. Regulation 19(2) of the UC (TP) Regs 2014 (old style ESA); or Regulation 39(1)(a) of the UC Regs (2013) (new style ESA).
* If they were getting the Support Component in their ESA, their UC award should include a Limited Capability for Work Related Activity (LCWRA) Element. Regulation 19(4) of the UC (TP) Regs 2014 (old style ESA) or Regulation 40(1)(a)(ii) of the UC Regs (2013) (new style ESA).
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.'
Hope this helps
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems 
