New rules that came into force on 3rd April 2017 mean that many claimants who are found to have a limited capability for work on a new claim made on or after 3rd April may receive no more benefit than those who are fit for work and jobseeking.
NOTE: This does not affect those who are put in the Support Group (ESA) or are found to have a Limited Capability for Work Related Activities (UC).
For those affected - it means that their Employment and Support Allowance / Universal Credit award will not increase by the £29.70 a week (ESA) or£128.89 a month (UC), it would have done had they made their claim (ESA) or been referred for a Work Capability Assessment (UC) before 3rd April 2017 (ie the start of their period of limited capability for work was on or after 3rd April 2017).
So can a claimant get their claim (ESA) / date of referral (UC) backdated to before 3rd April 2017 so that they can get the extra benefit?
Employment and Support Allowance
ESA can be backdated up to three months. To get a backdate the claimant must:
- Request it, and
- Be able to provide a 'fit note' that covers the whole period they are looking to receive the backdate for.
They do not have to have a good reason why they did not claim earlier.
NOTE: if they finished work due to their limited capability then any ESA award can only be backdated to the day after any Statutory Sick Pay ended and cannot be awarded for any week in which the claimant was actually going into work
For new claims made up to 2nd July 2017, requesting a backdate to 2nd April 2017 or earlier, if given, could be a way of getting the Work Related Activity Component included in the ESA award- and securing them an extra £1,500 ESA a year. This is because the new rules do not apply (amongst other exceptions) if the claim was made on or after 3rd April 2017 where the claimant's ESA is payable before 3rd April 2017 ie it was payable from an earlier date because of the successful backdate request.
The claimant should request the backdate when they make their claim - but can, in certain situations, request the backdate up to 13 months later.
Click here for more information and a Standard Letter.
Only those claimants living in a 'Full' / Digital service area will be able to make a new claim for Universal Credit if they have a limited capability for work. They cannot claim UC in 'Live' / Gateway areas because they are prevented by the 'Gateway conditions'.
But even under the Live Service someone who is already on Universal Credit may find that a change in their health means that they now have a limited capability for work. They can continue to claim UC, provide a fit note, request a Work Capability Assessment (WCA), and be assessed as such.
However, if they can provide a backdated 'fit' note, their period of incapability for work cannot begin until they have requested a WCA or been referred for one by their Work Coach.
Where this is on or after 3rd April 2017, and they are found to have a limited capability for work (but not a limited capability for work related activities) then although their conditionality requirements will change, most claimants*will receive no extra Universal Credit.
*Where they or their partner are working they may become entitled to a higher work allowance and/or become entitled to help with their child care costs -click here for more information.
So there is no scope - unlike under ESA - to get the start of a period of incapability for work backdated UNLESS the UC claimant could make a backdated claim for Contributory ESA - or what is now called 'New-style' ESA in 'Full'/Digital service areas.
Could they claim 'New-style' ESA as well as UC?
If the UC claimant can make a claim for Contributory ESA (ie they meet the NI contribution conditions)they can request that their ESA claim is backdated to before 3rd April 2017. If they are found to have a limited capability for work, then their Contributory ESA will include a Work Related Activity Component. Where a UC claimant is on 'New-style' ESA with a component, their UC award should include the equivalent Element. So where a UC claimant also gets 'New-style' ESA with a component then their UC award should include a Limited Capability for Work Element - securing them an extra £1,500 UC a year.
Example: Willow finished work at the end of March 2017 due to ill health - she lived in a 'Full'/Digital service UC area and so was advised to claim UC which she did. She did not start providing the DWP with 'fit' notes until mid April 2017 as she was not aware that she needed to. So, even if Willow is found to have a Limited Capability for Work her UC award cannot include the LCW Element as she was not referred for a WCA until after 3rd April 2017. But Willow had worked for a number of years and so makes a claim for 'New-style' ESA and requests a backdate to the date she finished work - and she is able to get a 'fit' note from that date. She is found to have a Limited Capability for Work on her ESA claim and her ESA award includes the Work Related Activity Component as her period of limited capability for work started before 3rd April 2017. This means that her UC award can include a LCW Element and she will be £128.89 a month better off.
Click here for more information.