Hi Mike
My client was getting income-related ESA until recently.
The DWP did a new Work Capability Assessment on her and said that she is fit for work, so her ESA stopped
We disagree, and we want to challenge this decision.
DWP say that she has to claim Universal Credit while they do a mandatory reconsideration of the decision, and that once she has claimed UC she will never be able to go back to ESA.
Is this right?
Laura
Hello Laura,
The person that your client spoke to is a bit out of date. This is how it is now:
The Lobster-Pot and Natural Migration
It’s true that once you have claimed UC you can never go back to the legacy benfits.
For a little while the DWP kept calling UC a lobster-pot because once you are in it, you are in it.
Then they realised that a lobster-pot is a trap where the lobster waits to be killed, so they stopped using that metaphor.
Nonetheless with Universal Credit as soon as you claim UC you are locked out of the legacy benefits – forever*.
In benefits jargon you have naturally migrated to Universal Credit
How To Challenge The Work Capability Assessment Decision
In most cases, there is a two stage process for challenging a benefit decision:
First you have to ask the DWP to look again at the decision – The law calls this a revision. DWP love to give two different names to the same thing so they call it a Mandatory Reconsideration. The DWP may change the decision and you may be happy with the outcome.
Then, if the DWP does not change the decision during the mandatory reconsideration, you can appeal to an independent panel called a Tribunal
The Fit-For-Work Quirk – How It Used to Be
With a fit-for-work decision ESA stopped after the initial decision.
So long as you didn’t claim UC in the meantime, your ESA could be reinstated after the mandatory reconsideration, while you waited for the tribunal – which might be several months.
But, if you claimed Universal Credit while waiting for the mandatory reconsideration your ESA couldn’t be reinstated while you wait for the tribunal, because of the lobster-pot rule.
The Fit-For-Work Quirk – How It Is Now
In July 2020 a new court decision changed the rules.
Since then, if your Work Capability Assessment says that you are fit-for-work, you do not have to go through the Mandatory Reconsideration stage.
You can submit an appeal straight away. Then, so long as you provide doctor’s statements (sicknotes) the DWP can carry on paying your ESA.
The Court Decision is known as Connor – It’s official title is [Connor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWHC 1999 (Admin)]
In September the DWP issued a memo to their staff to explain the new rules.
Are You Always Better-Off Staying On ESA?
No!
Some people will be worse-off on Universal Credit and should try to stay within the legacy benefits until they are moved over by managed migration so that they get transitional protection.
Some people will get a higher rate of benefit by claiming Universal Credit.
Lots of different factors can affect this, so get some training on Universal Credit so you understand these.
If you need help understanding your service-user’s situation, feel free to get in touch.
* What’s With The Asterisk?
At the top of the page I said as soon as you claim Universal Credit you are locked out of the legacy benefits – forever*.
Actually, it is still possible to claim Housing Benefit for homelessness accommodation and supported accommodation – even after you have migrated to UC.