JW v Secretary of State for Work and Pensions (UC)

A claimant moving to Universal Credit may receive the LCWRA element from the first assessment period despite a gap after entitlement to old-style ESA ended. The exceptions in regulation 28 of the Universal Credit Regulations 2013 are not exhaustive where the transitional regime applies.

Where the claimant was entitled to national-insurance credits because they would have had limited capability for work if entitled to ESA, and had a pre-claim LCWRA determination, regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014 treats the claimant as having LCWRA. It disapplies both a further assessment and the usual three-month waiting period.

JW had received income-related ESA and had been found to have limited capability for work and limited capability for work-related activity. Her ESA ended when her partner began working more than 24 hours weekly. Six months later she claimed Universal Credit.

The Secretary of State accepted that she then had LCW and LCWRA, but awarded the LCWRA element only after the usual three-month period. The First-tier Tribunal dismissed her appeal on the basis that the gap had broken the link with her ESA claim. She appealed to the Upper Tribunal. The central issue was whether regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014 preserved entitlement to the element from the start of the Universal Credit award.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and the Upper Tribunal re-made it so that the claimant was entitled to the LCWRA element from the beginning of her Universal Credit entitlement, 20 October 2019.

2. Regulation 28 of the Universal Credit Regulations 2013 ordinarily postpones the LCWRA element for three months. The claimant did not fall within any express exception in regulation 28(3)–(5). However, those provisions were not a complete code for claimants moving from legacy benefits.

3. The applicable route was regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014. The claimant was entitled to be credited with earnings under regulation 8B(2)(a)(iv) of the Social Security (Credits) Regulations 1975. Although her income-related ESA had ended, she would have remained entitled to ESA but for failure to satisfy the contribution conditions, and she retained LCW for that purpose.

4. Regulation 8B(4) did not require a separate or annual written claim for credits. The original ESA claim could constitute the requisite written notice and statement of grounds. The Tribunal therefore erred in treating the absence of proof that credits had already been awarded as decisive.

5. As there had been an earlier ESA determination of LCWRA, regulation 21(4) treated the claimant as having LCWRA for Universal Credit. Under regulation 21(5), regulation 28 did not apply and the LCWRA element was payable from the first assessment period. The Secretary of State’s contrary response had overlooked the transitional provision and led the Tribunal onto the wrong path.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and substituted a decision awarding the LCWRA element from 20 October 2019.
• First-tier Tribunal (Social Entitlement Chamber): on 13 November 2020, under reference SC946/20/00218, dismissed the claimant’s appeal and held that the six-month gap after ESA had broken the link with the later Universal Credit claim.