Confused by ESA/UC claim

chappyandy

Hi everyone 

This is my first post on here so please be gentle!

I am looking for help and advice for my 18 year old son who has Autism with learning difficulties and who attends a local college on a full time interface course.

I am his Dad and his DWP Appointee.

He applied for ESA in October and after having anxiety In having to attend an interview at the local Job Centre to complete the claim and also at the doctors for a fit note to say he was unfit for work,we assumed the claim was progressing.

We then received a Health Assesment form in November which was returned ,after which we had heard nothing back.

I rang today to chase up the claim to be told a bizarre response.

They said he had been placed in the support group but he isn't entitled to any ESA as it was New style ESA which is contribution based,which,as my son  has never worked,means he won't get any ESA.

They told me I need to apply all over again through Universal Credit to which I replied that they had all the information  they need to do this but they said my son has once again got to attend a job centre interview and basically start from scratch.

It is all so frustrating 

Any help and advice on  this would be greatly appreciated.

BenefitsTrainingCo

chappyandy,

I'm sorry to say that I think the advice you've got is correct. Your son should have been told he has a credits only claim for ESA (or that he can have one if he wants one), has he been advised of this? I'd say that this is worth having in his situation.

Now, as his appointee, you can make a claim for universal credit on his behalf. I know they have a lot of the information they need for this but unfortunately, they are separate claims. You could complain to the Jobcentre for their failure to point this out to you when you attended, and if you do, I would ask them for compensation to make up the missing payments.

When you claim UC I would suggest that you ask for backdating of a month on the grounds of disability (because indirectly, the reason you haven't claimed earlier is because of your son's disability & the confusion around ESA). Any payments for earlier than one month before your claim, you'd have to seek as compensation in your complaint to Jobcentre Plus.

The support group decision your son has got from ESA should be carried over into his UC claim. He shouldn't have to do anything to get UC (he doesn't have to look for work or anything like that). You do not have to accept a claimant commitment on behalf of your son. There's more information on applying for UC as an appointee here (at point 4 onwards).

If you want to try to avoid the JC+ interview, you could try arguing that it has already been established that your son lacks capacity to understand a claimant commitment (if you think that is the case) and so he shouldn't have to have the jobcentre plus interview all over again. You could also mention that he had considerable anxiety about attending beforehand, and requiring him to come in again is a failure to make the reasonable adjustments he needs under the Equality Act, s29. You may need to complain again if the UC claim doesn't allow you to join up what has already happened with the requirements of the claim (which unfortunately is not unlikely).

What I do think is unavoidable is making a claim for UC. Claims are made online but in your position I would ring the UC helpline first to check what the procedure is for an appointee.

If you struggle to get through to someone (the helpline unfortunately assumes that yo have already made a claim), I would try talking to JC+ for help. You could claim UC & then become an appointee (this seems to be what the guidance is saying);  as far as I can see the guidance implies that becoming an appointee for UC is a separate process, even if you are already an appointee for other benefits. It really isn't clear! If you don't get anywhere via the helpline then you may again have to approach JC+ and say that they need to help you to make the UC claim on your son's behalf & direct you as to how to become a UC appointee. A failure to support you is clearly going to be against the Equality Act 2010 and again, if that results in any loss of money, you could complain (as well as asking for the one month backdating as above). 

I agree that it's really frustrating but I hope you get it sorted soon and get the UC claim started. As you probably know, you claim UC online (via gov.uk). The support group decision should be carried over and your son should not have any work-related requirements. If you have any problems with this, the regulation to quote is reg 40(1)(a)(ii) - that says that an assessment carried out under the ESA regulations which found someone to have limited capability for work and work-related activity counts for UC.

Will

BenefitsTrainingCo

PS also, Reg 21 of the UC (transitional provisions) regs says that someone who would be in the support group if they could get ESA can be treated as having limited capability for work related activity in UC. Unfortunately that doesn’t stop UC from reapplying the assessment, but I hope they won’t & will realise that your son’s existing support group status continues.