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Challenging Decisions: Need to Claim UC?
If someone’s payments of ESA stop because they have been found fit for work, or treated as fit for work after failing to return their ESA50 questionnaire by the deadline or failing to attend their medical examination without good cause, they may decide to make a new claim for benefit and they may end up on Universal Credit.

Even if they challenge the decision to end their ESA award and they win that challenge, once on Universal Credit the government’s intention is that they will remain on UC and they will not be able to swap back onto ESA*. Instead, if they are deemed unfit to work - their Universal Credit will include a Limited Capability for Work or a Limited Capability for Work Related Activity element.

* In ‘live’ non-digital UC areas it can be possible to swap back onto ESA – click here for more information.

Why might someone prefer to be on ESA than UC?

Some people will be financially better off if they can avoid UC or (where the live non-digital service is available) get back onto ESA. On the other hand, some people could get more on UC - click here.

The table below illustrates how much a single person age 25+ would receive on ESA / UC in different circumstances. Remember, this is just one part of UC we are comparing with the legacy benefits – it is always best to get advice on someone’s individual circumstances; there could be other important factors to consider too!

Situation

ESA

UC (weekly figures)

In WRAG and not entitled to EDP or SDP

£102.15

£102.15

In WRAG and entitled to SDP

£164.00

£102.15

In Support Group and not entitled to SDP

£125.05

£145.77

In Support Group and entitled to SDP

£186.90

£145.77

 
 
*EDP = Enhanced Disability Premium
*SDP = Severe Disability Premium

So if someone wants to avoid UC when challenging their ESA decision – what can they do?

This will depend on whether they live in a live (non-digital) or a full (digital) UC service area…

Live (non-digital) areas

The gateway conditions still exist in live UC service areas; so if someone does not fit the gateway conditions they cannot claim UC. One of the gateway conditions is that the claimant must not be awaiting the outcome of a request to revise an ESA decision; so if the claimant requests a mandatory reconsideration of the decision to end their ESA award before trying to claim UC, they can avoid UC because they fail the gateway conditions and cannot claim UC; they could claim JSA instead. More information here.

Full (digital) service areas

There are no gateway conditions under the digital service, so anyone who needs to make a new claim for legacy benefits cannot do so and, if they want to claim a top-up, must claim UC. Therefore the only way to avoid UC is by not making a claim.

The following points are worth noting:
  • While challenging the ESA decision it is not possible to be paid any ESA until the appeal has been lodged with HM Courts & Tribunals Service.
  • It is not possible to lodge an appeal until the Mandatory Reconsideration decision has been made. So there is a period which could be as little as 2 weeks or could be several weeks when the claimant has to either manage without claiming UC or make a claim for UC.
  • If they can manage without claiming UC, once the appeal has been lodged and HMCTS have notified the ESA department that they have received the appeal, the basic amount of ESA can then be paid to the claimant. Arrears can also be paid to cover the whole period for which the claimant has been without any payments.
  • This does not count as a new claim for ESA – it is merely putting the existing claim back into payment. We are aware that in some UC Full (digital) Service areas, the DWP are telling ESA claimants that they cannot have their payments of ESA reinstated and must claim UC instead - this is incorrect. The ESA regulations have not been amended, this is not a new claim for ESA and therefore this situation should not trigger a UC claim.
  • If they then go on to win their appeal, the claimant will be awarded the extra components and premiums they are entitled to.
  • And if they manage to remain on ESA – ie they continue to be found to have a limited capability for work, when they are eventually ‘migrated’ onto UC – their rate of benefit will be protected.
  • So some people in digital service areas are taking the view that it is better to try to manage for a few weeks rather than make a claim for UC.

An important point to remember is this: If they did claim UC they would have to wait one month and seven days for their first payment anyway; so going down the alternative route (finding other ways to manage until they can lodge their appeal and have ESA paid again) can in many cases take less time.

If the claimant’s Housing Benefit award has been terminated after ESA ended; the claimant should make sure they request a review of that decision – ie get the original HB award reinstated. They will not be allowed to make a new claim for HB – and would be directed to claim Universal Credit.

What if the claimant withdraws their UC claim before a decision is made?

If the claimant has made a claim for UC but then withdraws their claim before a determination is made (which is normally at the end of their first monthly assessment period), then it is as if that UC claim never existed and they should not be classed as a UC claimant.

This would be the case whether the claimant lives in a digital or non-digital UC area; even in a digital service area a claimant who feels they would be better trying to manage without UC until they can lodge their appeal, then get back onto ESA payments pending their appeal could avoid UC if they withdraw that claim. In practice, it could be quite tricky getting this sorted out, but legally there is no reason why this cannot be done. They would need to ensure that their HB is continuous, so if their claim has been terminated, they will need to request a revision to get it reinstated (because in a digital UC area they cannot make a new claim for HB - it would be UC instead).

If you would like more advice on a particular case. please contact us: info@housingsystems.co.uk.






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