Where the claimant was previously on Income-Related ESA, if they:
- Moved from IR-ESA to UC without any gap, and
- were still classed as 'unfit for work' on the day they claimed UC, and have been on UC and classed as 'unfit for work' ever since*,
- then the equivalent component that was included with their ESA claim should be transferred to/included in their UC assessment ie:
*Where someone has claimed UC because their ESA was terminated (eg because they were found fit for work, failed to complete their ESA50 questionnaire or failed to attend a re-assessment medical without showing good reason) but they are subsequently successful in getting the decision to terminate the ESA overturned via Mandatory Reconsideration or appeal, then if the revised ESA decision is that they were entitled to the WRAG component, their UC award should include the LCW Element from the start, or if they were entitled to the Support Component in ESA, the LCWRA Element should be included from the start of the UC award.
We are aware that often the appropriate Element is not included in the UC award - meaning their UC award is less than it should be.
Ebony was getting Income-Related ESA when she moved to a new LA area and needed to claim Universal Credit to help pay her rent. She has been on IR-ESA since 2015 and was in the Work Related Activity Group, so her IR-ESA award included the Work Related Activity Component.
Because they was no gap between her IR-ESA ending and her award for UC starting, and she had not been found fit for work, Ebony was entitled to the Limited Capability for Work Element included in her US assessment from the start of her claim.
Donald was getting Income-Related Employment and Support Allowance, but at his last Work Capability Assessment was found fit for work. So he claimed Universal Credit.
After chatting to a friend he decided to challenge the ESA 'found fit' decision. It took several months, but eventually at Appeal, the Tribunal decided he was 'unfit for work' and placed him back in the Work Related Activity Group.
Because his IR-ESA claim had started before April 2017 and he has (now) had a continuous period of Limited Capability for Work since before the rules changed, the Work Related Activity Component that he had been getting in his IR-ESA award should be transferred over to his UC award. And his UC award should be re-assessed from the start to include the Limited Capability for Work Element.