ESA / UC MIGRATION

Hi Brian1888

I will try and answer your question.

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of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that an ESA decision may be superseded if a Healthcare Professional has provided the decision maker with medical evidence.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on the WRAG/Support group for ESA and on the Limited Capability for Work/Work Related Activity in UC cannot be superseded - ie taken away - without evidence from a Healthcare Professional.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). 

We are aware that more often than not the appropriate Element is not included in the UC award - meaning their UC award is less than it should be.

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 Brian 1888

You are welcome.

Gary

Hi Gaddy

I have not seen an on line application form in quite a while as we work from home.

You used to be able to add details as to what benefits you are receiving.

When you have your interview with your workcoach you can tell them, providing you still had a live ESA claim when you applied for UC then you should not have to provide a fit note, you should be placed in the LCWRA group, if you are not, then apply for a Mandatory Reconsideration.

I still come across this error but not as frequent as it used to be, we do bring up any cases with DWP partnership managers.

Gary