When a claimant with limited capability for work-related activity migrates from the legacy benefit system to universal credit (UC), how is that reflected in the UC award? Simon Osborne reviews the situation.
The context
Before migration to UC, a claimant with limited capability for work-related activity (LCWRA) will very often be getting ‘old-style’ employment and support allowance (ESA). Alternatively, they may be getting ‘credits only’ – ie, have no award of ESA but still be getting national insurance contribution credits for limited capability for work (LCW). That is sometimes referred to as an ‘ESA credits only’ award, although there is in fact no award of ESA in this situation (see '
National insurance credits for limited capability for work' for more).
Migration to UC is ultimately brought about by making a claim for UC. Much focus is now on where that happens under the ‘managed’ migration process – ie, the claimant has claimed UC after being sent a migration notice telling them that their legacy benefits are to end and inviting them to claim. But it is still possible for claimants (advisedly or not) to claim UC before being sent a migration notice, and so undergo ‘natural’ migration to UC.
What should happen?
Whether the migration is via managed or natural migration, a claimant already determined as having LCWRA outside the UC system at the time of their UC claim should as a matter of law:
•be treated as having LCWRA for the purposes of UC; and
•have the LCWRA element included in the award from the first assessment period – ie, not be subject to the default ‘relevant period’ of three assessment periods before that element is included.
The relevant provisions are in regulations 19 and 21 of the Universal Credit (Transitional Provisions) Regulations 2014 (the ‘TP Regulations’).
1SI 2014 No.1230 They apply in all migration to UC cases – they do not specifically refer to managed or to natural migration.
2Very similar provision is made regarding being treated as having limited capability for work (LCW) on migration to UC and may still apply in non-LCWRA cases. But provision regarding the LCW element was removed in the light of the abolition of that element for new claims from 3 April 2017.These transitional provisions apply at the point of migration only: there is nothing to prevent the Secretary of State from revisiting the LCWRA issue (ie, via a new work capability assessment) at some future date. In practice, the rules considered here have not always been followed, so advisers need to be alert. They require the claimant either to have been entitled to old-style ESA with LCWRA or at least to credits with LCWRA outside the UC system at the point of the claim for UC. However, recent caselaw has held that to be unlawful discrimination in some cases where migration is undergone by a ‘mixed-age’ couple – see ‘Discrimination and mixed-age couples’ below.
ESA-entitled claimants
The relevant rule regarding what happens on migration is regulation 19 of the TP Regulations. That includes the following:
‘19. (1) This regulation applies where—
(a) an award of universal credit is made to a claimant who was entitled to old style ESA on the date on which the claim for universal credit was made or treated as made ‘the relevant date”); and
(b) on or before the relevant date it had been determined that the claimant had limited capability for work or limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act)...
(4) Where, on or before the relevant date, it had been determined that the claimant had limited capability for work-related activity (within the meaning of Part 1 of the 2007 Act) or was treated as having limited capability for work-related activity—
(a) regulation 27(3) of the Universal Credit Regulations [2013] does not apply;...
(b) the claimant is to be treated as having limited capability for work and work-related activity for the purposes of regulation 27(1)(b) of those Regulations and section 19(2)(a) of the Act; and
(c )the claimant is to be treated as if the determination that they have limited capability for work and work-related activity, for the purposes of regulation 14(1)(b) of those Regulations, was made before the date on which the claimant started receiving education...’
So, if the claimant was entitled to old-style ESA on the date of the claim for UC and (in LCWRA cases) had LCWRA, they are (as per 19(4)(a) and (b)) to be treated as having LCWRA without a new work capability assessment. Those in education are treated as having had that before starting the education, to ensure disabled students on old-style ESA transfer to UC successfully (19(4)(c)).
Regulation 19 further provides:
‘(5) Unless the assessment phase applied and had not ended at the relevant date, in relation to a claimant who is treated as having limited capability for work and work- related activity under paragraph (4)(4)(b)—
(a) regulation 28 of the Universal Credit Regulations does not apply; and
(b) the LCWRA element is...to be included in the award of universal credit with effect from the beginning of the first assessment period....’
So, a claimant who is treated as having LCWRA under this rule is exempt from the relevant period for inclusion of the LCWRA element at regulation 28 of the Universal Credit Regulations 2013, meaning that the element is included straight away.
‘Credits only’ cases
The rules described above are very similar for ‘credits only’ cases (although here there is no deeming provision regarding those receiving education). The relevant rule is at regulation 21 of the TP Regulations.
3On credits for LCW for the purposes of this rule, in particular their continuation when ESA is ended for reasons other than a finding that the claimant no longer has LCW, see JW v SSWP (UC) [2022] UKUT 117 (AAC). That includes the following:
‘21. (1) This regulation applies where—
(a) an award of universal credit is made to a claimant who was entitled to be credited with earnings equal to the lower earnings limit then in force under regulation 8B(2)(iv), (iva) or (v) of the Social Security (Credits) Regulations 1975 (‘the 1975 Regulations’) on the date on which the claim for universal credit was made or treated as made (the ‘relevant date’); and
(b) neither regulation 19 nor regulation 20 applies to that claimant (whether or not, in the case of joint claimants, either of those regulations apply to the other claimant)...
(4) Where, on or before the relevant date, it had been determined that the claimant would have limited capability for work-related activity (withing the meaning of Part 1 of the 2007 Act) if he or she was entitled to old style ESA—
(a) regulation 27(3) of the Universal Credit Regulations does not apply; and
(b) the claimant is to be treated as having limited capability for work and work-related activity for the purposes of regulation 27(1) of those Regulations and section 19(2)(a) of the Act....’
Again, the regulation goes on to disapply the relevant period in regulation 28 of the Universal Credit Regulations:
‘(5) Unless the notional assessment phase applied and had lasted for less than 13 weeks at the relevant date, in relation to a claimant who is treated as having limited capability for work and work-related activity under paragraph (4)—
(a) regulation 28 of the Universal Credit Regulations does not apply; and
(b) the LCWRA element is...to be included in the award of universal credit with effect from the beginning of the first assessment period...’
‘Mixed-age’ couples
What if migration to UC is undergone by a ‘mixed-age’ couple – ie, where one member of the couple has already reached pension age? The rules described above should apply in the same way as to a non-mixed-age couple – but that has not always been the case in practice. A decision that holds that those rules do not apply where it is the pension-age member of the couple that has the LCWRA (on the specious ground that UC is a working-age benefit and so does not apply to them) is flat wrong: neither regulation 19 or 21, nor the rules about LCWRA itself in the Universal Credit Regulations, impose any requirement that it must be the working-age member of the couple that has LCWRA.
Discrimination and mixed-age couples
The rules specifically require either entitlement to ESA or to credits for LCW at the point of the claim for UC. What if neither applies at that point? Straightforwardly, neither regulation 19 nor 21 of the TP Regulations can apply, so that the claimant cannot benefit from them.
But in
PR v SSWP (UC) (, p12),
4[2023] UKUT 290 (AAC) the Upper Tribunal held on the facts that the application of the relevant period before the LCWRA element was included amounted to unlawful discrimination on grounds of age. The claimants were a mixed-age couple where it was the pension-age member of the couple who had LCWRA and was the ESA claimant. She had lost entitlement to ESA only because of reaching pension age (ie, not following reassessment under the work capability assessment), but had been informed of that loss only after it had happened. Consequently, she could not meet the requirement at regulation 19 to have been on ESA at the time of the UC claim. Neither could she meet the parallel requirement regarding credits for LCW at regulation 21 as, again solely due to being of pension age, she was no longer entitled to credits for LCW.
Judge Wright held that in those circumstances the application of the ‘relevant period’ was in breach of her human rights, as unlawful discrimination on grounds of age. The remedy was to disapply the relevant period rule and award the LCWRA element from the start of the award. Although dependent on particular facts, the decision will be useful in any similar mixed-age migration case – ie, where UC was not claimed before the ESA was ended on age grounds, and the LCWRA element is linked to the pension-age member of the couple.