Simon Osborne looks at the rules regarding claimants ‘migrating’ from employment and support allowance (ESA) to universal credit (UC)
What is ESA to UC migration?
Migration is about moving or transferring from income-related ESA to UC. UC completely replaces income-related ESA. Any income- related ESA, and any contributory ESA paid outside the UC system, is called ‘old-style’ ESA. Contributory ESA however can be paid with UC or otherwise under the UC system – in which case it is referred to as ‘new-style’ ESA.
An official ‘managed migration’ process, in which current claimants will effectively be required to claim UC instead of legacy benefits (including income-related ESA), is due to start in 2019 and be complete by 2022. It is expected that transitional protection will mean that the claimant remains entitled at least to the amount of legacy benefit received at the point of migration.
Outside that process, including before 2019, it is possible to migrate from income-related ESA to UC under so-called ‘natural migration’. There is no transitional protection to the level of legacy benefit previously received. Natural migration occurs where a change in circumstances causes a claimant to make (or attempt to make) a new claim for a legacy benefit and then finds that, under the UC rules, s/he cannot make a new claim. S/he therefore decides to claim UC instead. The claim for UC terminates all entitlement to whatever legacy benefits s/he may have; in effect, s/he is then fully under the UCsystem.(Also, a claimant wishing to move to UC could short circuit the whole process simply by submitting a claim for UC.)
A full description of what is involved is in the article ‘Universal credit and “natural migration”’ in Bulletin 254, p5. There are also relevant pages on the ‘Ask CPAG’ pages
When does natural migration occur?
Migration to UC is complete in any case where a claimant makes a new ‘claim’ for UC.1 1 By a combination of provisions in Article 4 of the relevant Commencement Order (regarding income-related ESA and income-based JSA) and regs 5 and 8 The Universal Credit (Transitional Provisions) Regulations 2014, No.1230 (‘UC TP Regs’)
(‘Claim’ is not defined, and arguably someone who withdraws the claim before it is decided, or whose claim is defective, has not made a claim, but this point is yet to be tested.) A claimant who makes a new claim for jobseeker’s allowance (JSA) or ESA may well feel obliged to claim UC, having found that her/ his income-related ESA has been abolished – see below.
But other scenarios are possible. For example, a claimant who relocates to a UC full service area is unable to make a new housing benefit claim and is likely to feel obliged to claim UC instead. An ESA claimant in a full service area who has a first child will not be able to make a new claim for tax credits, and again may well claim UC instead. In both cases the result is that all legacy benefits, including income-related ESA, are abolished. But a claimant getting old-style contributory ESA can still top this up with income-related ESA, rather than UC: the addition of income-related ESA would be by way of a supersession rather than a new claim for ESA.
After failing the WCA
A common situation in which natural migration from income-related ESA to UC may occur is following a failure of the work capability assessment (WCA). What happens then depends on whether the claimant is in a UC full service area or a live service area.
Full service areas
In a full service area, income-related ESA will be abolished for her/him if s/he claims UC, or tries to make a new claim for JSA or for ESA. It makes no difference whether such a new claim is made before or after a request for mandatory reconsideration or appeal. From that point, s/he cannot be entitled to income-related ESA, even if s/he successfully challenges the WCA failure. The result is likely to be a claim for UC, so making the migration complete. The key advice for any claimant wishing to avoid migration to UC is not to make a new claim for UC, ESA or JSA.
Live service areas
In a live service area, income-related ESA will be abolished for her/him if s/he claims UC or tries to make a new claim for JSA or for ESA, and s/he satisfies the UC gateway conditions. If that happens, again the practical result is likely to be a claim for UC, completing the migration from ESA. If at the point the new claim is made the claimant is pursuing a challenge to the WCA failure, including at mandatory reconsideration, s/he will not satisfy the gateway conditions. In that case, income-related ESA is not abolished for her/him, and s/he can return to it if her/his challenge to the WCA failure is successful. The key advice (for any claimant wishing to avoid migration to UC) is to ensure that the WCA failure has been challenged and that challenge is continuing before any new claim is made.
ESA pending appeal
Does getting ESA pending appeal (ie, following appeal and submission of a medical certificate) constitute a new claim for ESA? Legally speaking, no, as that is awarded without a claim 2 2 Reg 3(j) 'The Social Security (Claims and Payments) Regulations 1987, No.1968
The DWP has, in practice, not been consistent in accepting this, and some claimants have been told that they simply ‘cannot’ get ESA (rather than UC) pending appeal. Back in November, the DWP told CPAG it accepted that ESA pending appeal is not a new claim 3 3 Email from DWP to Henri Krishna, CPAG in Scotland, 10 November 2016 – see Bulletin 255, p2
So getting ESA pending appeal should not result in migration to UC. Official claims to the contrary should be vigorously contested – the problem seems to have decreased but not to have died out.
What if migration to UC happens?
If a claimant does migrate from ESA to UC, transitional rules may apply4 4 UC TP Regs
It is important to remember that these transitional rules are not ‘transitional protection’ to the same amount of UC as s/he got in legacy benefits. Rather, they are rules providing for things like being treated as having limited capability for work, limited capability for work-related activity and having already served time in the assessment phase.
The key requirement for the transitional rules to apply is that the claimant ‘was entitled to old-style ESA on the date on which the claim for universal credit was made or treated as made’5 5 Regs 19(1)(a) and 20(1)(a) UC TP Regs
They should also apply where a claimant who had failed the WCA (and so actually lost entitlement to old-style ESA) claimed UC but later has that failure reversed on mandatory reconsideration or appeal – ie, because the revised decision replaces the decision embodying the WCA failure.
Migration and limited capability for work
A claimant who was entitled to old-style ESA and for whom it had been ‘determined that [s/he] had limited capability for work’ (ie, passed the WCA) when s/he claimed UC is treated as having limited capability for work for UC. So a new WCA is not immediately necessary (but see also ‘Migration and the WCA’ below)6 6 Reg 19(1) and (2) UC TP Regs. For official guidance (full service areas), see Advice for Decision Making (ADM) Ch M6, paras M6190-6201
If s/he was entitled to the work-related activity component in her/his ESA, the limited capability for work element of UC can be included from the startof the first assessment period7 7 Reg 19(3) UC TP Regs. For official guidance (full service areas), see ADM Ch M6, para M6192-3
This should also apply where old-style ESA and work-related activity component entitlement was established only after a successful challenge (including on appeal) to a WCA failure, and the claimant has in the meantime migrated to UC.8 8 See the official guidance at ADM Ch M6, paras M6315-6
The work-related activity component in ESA and the limited capability for work element in UC were abolished for new claims from 3 April 2017. Transitional protection rules retaining the limited capability for work element in UC include situations where the claimant was getting ESA before 3 April, and where ESA entitlement before 3 April is established on revision or appeal.9 9 Sch 2 The Employment and Support Allowance and Universal Credit (Miscellaneous Amendments and Transitional and Savings Provisions) Regulations 2017, No.204
Official guidance confirms that a mandatory reconsideration or appeal that results in ESA entitlement before 3 April can result in inclusion of the limited capability for work element from the start of the UC award.10 10 Memo ADM 7/17, para 16
What if the claimant was still in the assessment phase when s/he migrated to UC? S/he is not treated as having limited capability for work. The rules provide that as long as s/he was entitled to old-style ESA (ie, on the basis of the medical certificate), the assessment phase period is adjusted. The result is that the ‘relevant period’ before a UC limited capability for work element is eventually included (where it still can be included) is 13 weeks from when ESA entitlement started. If the assessment period had already lasted for more than 13 weeks, there is no ‘relevant period’ to be served at all.11 11 Reg 20 UC TP Regs. This regulation still applies regarding the limited capability for work element where there is transitional protection to the element.
Migration and limited capability for work-related activity
A claimant entitled to old-style ESA and for whom it had been determined that s/he had limited capability for work-related activity or was treated as having limited capability for work-related activity (ie, was in the support group) when s/he claimed UC is treated as having limited capability for work-related activity for UC.12 12 Reg 19(4) UC TP Regs
This should also apply regarding a claimant who established this on mandatory reconsideration or appeal concerning ESA.13 13 The example in the official guidance at ADM Ch M6, para M6316 concerns the limited capability for work element, but there is no reason why the same should not apply to the limited capability for work-related activity element.
If the claimant was still in the assessment phase when s/he transferred to UC, the UC ‘relevant period’ before the limited capability for work-related activity component can be awarded is 13 weeks. If the assessment phase had already lasted for more than 13 weeks, if entitlement to the element is established it is included in the UC award from the start of the first assessment period.14 14 Reg 20 UC TP Regs
Migration and the WCA
The main UC rules provide that a WCA assessment ‘may’ be carried out in one of two situations:15 15 Reg 41 The Universal Credit Regulations 2013, No.376
where ‘it falls to be determined for the first time’ whether the claimant has limited capability for work or for work-related activity; or
where that has been a previous determination, and ‘the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition or whether that determination was made in ignorance of, or was based on a mistake as to, some material fact’.
In migration cases, usually there will already have been a previous determination (ie, a previous WCA), so situation 1 above will not apply. That leaves a discretionary power to reassess for the purposes of checking for a relevant change circumstance or for factual error regarding the previous assessment – so situation 2 above may apply. The transitional rules specifically provide that where a claimant is treated as having limited capability for work, ‘the Secretary of State may at any time make a fresh determination as to these matters’.16 16 Reg 19(7) UC TP Regs
But clearly this is not mandatory, and in practice it may be that where a claimant indicates both sickness and previous ESA entitlement, there will not be an immediate new WCA.
What about claimants who have migrated to UC but still have their appeal against the WCA failure pending? The ESA provision barring repeat WCAs pending appeal is not repeated in the UC rules. 17 Reg 147A The Employment and Support Allowance Regulations 2008, No.794. That does not apply to the assessment of limited capability of work for UC.
DWP practice here is unclear. It remains that there is a discretionary power to arrange a new WCA, and in some cases the process has at least been started. However, CPAG is aware of some cases where, when UC becomes aware that the appeal is pending, the new WCA is cancelled and the outcome of the appeal awaited.
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