Amending Regulations (The Social Security (Miscellaneous Amendments) Regulations 2025) finally resolve a longstanding problem that has been affecting couples who make a claim for UC after their ESA stopped because they aged into being a Mixed Age Couple (and the older person was the main claimant).
The problem
If they make that UC claim after their ESA has stopped (even if it’s the very next day) then there is no existing working capability decision to transfer to their UC claim and they miss out on at least £1248.57. We have detailed below the reason for this.
The DWP has been aware of this issue for over 5 years, but due to an Upper Tribunal decision from last year, they have now been forced to act.
The Solution
From 27th January 2025, a new rule applies where a couple’s ESA ended because the older member is the claimant and they turned State Pension age. If the couple make a claim for UC within a calendar month of their ESA ending, the older member will be treated the same as someone who is entitled to NI Credits for LCW/LCWRA.
This means that the work capability status that they had when they were on ESA should transfer to their UC award (see the positive impact of this below).
IMPORTANT
Where a Mixed Age Couple:
- has had their ESA stopped on or after 28th December 2024,
- because the older member was the main claimant and turned 66, and
- they have not yet made a claim for UC,
they may be better off waiting until 27th January 2025 to make that claim to bring them within this new rule.
Please see our flowchart.
Example:
William and Audrey were getting Income-Related ESA. William was the main claimant (in the Support Group) but he turned 66 (i.e. State Pension age) on 10th January and so their IR-ESA ended on 9th January and their Housing Benefit on 12th January.
They haven’t made a claim for UC yet, but they will need to as their only income is William’s State Pension and this isn’t enough to pay their rent.
If they make their claim for UC before 27th January, William will have to start the work capability process from scratch. If he is found to have a LCWRA then their UC award can include the LCWRA Element but only after he has served the three month ‘relevant period’.
However, if they wait and delay making their claim until 27th January, then they would fall under these new rules because they made a new claim for UC within a month of their IR-ESA ending and this ended because the main claimant turned State Pension age.
William’s work capability status would then transfer to their UC award, he wouldn’t need to have a new work capability assessment and the LCWRA Element would be included from the start of their UC award.
They should work out whether it is worth them delaying making their UC claim. How much UC would they have been awarded between today and 27th January. If that is less than £1,248.57 (i.e. 3 x £416.19 - the amount of the LCWRA Element) then it would be worth them delaying their claim.
Remember to consider any passport benefits that they may need to access during that period.
Background
Moving from ESA to UC
For those ESA claimants moving on to UC, the Regulations transfer their work capability status over to their UC claim if they:
- have an existing ESA award, or
- have NI credits for LCW/LCWRA
on the day their UC award starts (generally the day they make their claim for UC).
This means that:
If they were in the Work-Related Activity Group on ESA/or receiving NI credits for having a Limited Capability for Work –that decision transfers to their UC award, meaning:
- if their period of LCW started before 3rd April 2017, then their UC award will include an LCW Element – worth an extra £156.11 a month.
Likewise, if they were in the Support Group on ESA/or receiving NI credits for having a Limited Capability for Work and Work-Related Activities – that decision transfers to their UC award, meaning:
- their UC award will include an LCWRA Element – worth an extra £416.19 a month from the start of the UC award.
The Issue
For couples on ESA where the older member is the main claimant, their entitlement to ESA ends when the main claimant turns State Pension age (currently 66). So, their award will stop from the day before their 66th birthday.
Additionally, as they are State Pension age, they cannot be entitled to NI credits (because the purpose of these Credits is to build entitlement to a State Pension).
As their ESA (and any Housing Benefit^) has stopped, if they still need financial assistance they will need to make a new claim for Universal Credit.
^unless they live in ‘specified’ or ‘temporary’ accommodation.
However, if they make that claim for UC on or after the older member’s 66th birthday, as they are no longer on ESA and cannot have NI credits for LCW/LCWRA, there is no existing work capability status to transfer over to their UC award.
Meaning that:
Although they can start the work capability process afresh and could be found to have either a Limited Capability for Work (LCW) or a Limited Capability or Work and Work-Related Activities (LCWRA):
- They would have to complete the process again, by providing fit notes, competing a UC50, and (potentially) having a medical.
- If they are found to have a Limited Capability for Work, as it would be a new period of limited capability for work starting after 3rd April 2017, they would not be entitled to the LCW Element (which if they were getting the WRAG component in their ESA, is an ongoing loss of £156.11 a month).
- If they are found to have a Limited Capability for Work and Work-Related Activities, they can have the LCWRA Element included in their UC award but would have to serve the three month ‘relevant period’* before it gets added (a loss of £1248.57).
* unless they fall into one of the groups excluded from the ‘relevant period’.
Does this apply to both Income-Related ESA and Contributory ESA?
Yes. It applies to Income-Related ESA, Old-Style Contributory ESA and New Style ESA.
What if a couple in this situation delay making their claim for UC, but then get it backdated to within a month of their ESA ending?
These rules apply where a claim for UC is made or treated as made (i.e. backdated to), within a month of the ESA award ending. So as long as the claim is then treated as made on or after 27th February 2025 these rules would apply.
When does that month start?
It is a period of one month beginning with the day after the day on which the award of ESA ends. So, it will begin on their 66th birthday.
What if they were entitled to NI Credits for LCW/LCWRA before they turned 66?
The change to the Regulations only covers situations where a new UC claimant was entitled to an award of ESA that ended because they turned State Pension age. It does not cover claimants who had NI Credits for LCW/LCWRA. If they make a claim for UC after they’ve turned 66, their credits will have ended and there is no work capability assessment decision to be transferred.
What about those couples that have already moved on UC and missed out?
Following the Upper Tribunal decision on 29th November 2023, the DWP should have applied the case law to new claims for UC. This case law was more restrictive that the amending Regs and only applies to State Pension age claimants who are receiving enhanced rate daily living PIP (and so can be treated as having an LCWRA on UC). If a Mixed Aged Couple claimed UC on or after 29th November 2023 after their ESA ended because the older member was the main claimant and turned State Pension age AND that older member can be treated as having an LCWRA on UC, then the case law applies and they do not need to serve the ‘relevant period’ before having the LCWRA Element included in their UC award.
NOTE: in the case law, the claimant was in the Support Group on ESA. We believe this case law would also apply to claimants who had been in the Work Related Activity Group on ESA (as long as they can be treated as having an LCWRA on UC). But this is not certain – the DWP could decide that the case law only applies to those who were in the Support Group and the only redress to this would a legal challenge.
If a Mixed Age Couple claimed UC before 29th November 2023, or the older member is not receiving enhanced rate daily living PIP, the case law does not apply to them and they will have missed out.
What if it’s the younger member that’s the main claimant of the ESA?
Then when the older ember turns State Pension age their ESA (and any Housing Benefit) can continue in payment.