ESA to UC: run-on unlawfulness?

Introduction

From February 2025, the DWP aims to be issuing 63,000 migration notices each month to people receiving ’old-style’ employment and support allowance (ESA),1 so the issue considered here is likely to be arising for many claimants over the next year.

Those ESA claimants whose old-style ESA award is made up of a contributory award (cESA) as well as an income-related top-up (irESA) will, for reasons explained below, receive less total benefit in their first month of universal credit (UC) entitlement than those whose ESA award only consisted of income-related ESA.

It is arguable that this difference in treatment is unlawful as contrary to Article 14 read with Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR).

Why the issue arises

Under the two-week run-on rule, where a claimant has an award of ESA that includes irESA, then ESA continues to be paid for two weeks after claiming UC. In most cases, that means the claimant migrating to UC will in their first month of entitlement be better off by two weeks’ worth of ESA.

But where a claimant whose old-style ESA award is made up of both irESA and cESA (a ‘mixed ESA award claimant’) migrates to UC (whether as a natural migrant or as part of managed migration) then the following applies.

• The two-week run on2 means their award of irESA ends on the 14th day after they claimed UC.
• Their cESA award also runs on for those two weeks but converts into new-style ESA from the start of the 15th day (that is contributory ESA under the ESA Regulations 2013 rather than the ESA Regulations 2008).
• In the UC award for the first assessment period, then all the ESA paid during the run-on period (ie, the old-style irESA and cESA paid in that period) are ignored as income.
• However, regulation 8B of the Universal Credit (Transitional Provisions) Regulations 20243 also deems them to have been receiving new-style ESA for the whole of the first assessment period.
• The result of all that is, in effect, that in the first assessment period the claimant is only better off by the amount of their irESA top-up paid in the first 14 days of their UC award rather than by the full amount of the ESA they receive in that period.

Therefore, such a claimant’s benefit in the first assessment period (assuming no housing benefit (HB)) would consist of their mixed award of old-style ESA for the first two weeks, plus their new-style ESA from the 15th day of entitlement, but their UC would be reduced by an amount equal to a whole month’s worth of new-style ESA.

If we compare a mixed ESA award claimant with a claimant whose ESA only comprised irESA (an ‘irESA only claimant’), then they are worse off in that first assessment period. The irESA-only claimant would have a total income (again, assuming no HB) equal to two weeks’ irESA plus old-style cESA, which the mixed ESA award claimant got) plus UC, which would have no reduction.

Example

An example helps to illustrate this.

Alice is a mixed ESA award claimant in the support group who claims UC on 15 January. In the assessment period 15 January to 14 February, Alice actually gets:

• run-on of ESA for 14 days: £318.10 (all of that is actually cESA, except £83.40 representing two weeks of the enhanced disability premium);
• 17 days’ worth of new-style ESA that is actually paid: £334.71;
• UC calculated with a maximum amount of £809.64 (standard allowance and limited capability for work and work-related activity (LCWRA) element) but then reduced by one month’s worth of new-style ESA (£598.87) to give an award of just £210.77.

So Alice’s total ESA/UC in the first assessment period is £863.58.

Bob, on the other hand, is an irESA-only claimant. In his first assessment period, he gets:

• run-on of ESA for 14 days of £318.10;
• UC of £809.64.

So Bob’s total ESA/UC is £1,127.74 – ie, £264.16 more than Alice gets.

Is this unlawful discrimination?

All of the benefits in question are possessions for the purposes of Article 1 of Protocol 1 of the European Convention on Human Rights. That means that they must be provided in a way which does not discriminate on ‘an other status’ within the meaning of Article 14.

The only difference between Alice and Bob is that Alice had a mixed award of ESA whereas Bob was an irESA-only claimant. But they are treated differently in terms of their first month of income on UC.

It could be argued that being a person with a mixed award of ESA (and the more recent and/or extensive work history before claiming that implies) counts as an ‘other’ status under Article 14 (a point which is not yet tested).

If that were to be accepted, then it is most likely a challenge to the rules would depend on whether or not the difference in treatment between Alice and Bob can be justified. It would be up to the DWP to put forward a justification if there was an appeal, but it is difficult to see what that might be.

If the difference in treatment was ruled to be unlawful, then arguably a First-tier Tribunal would have to remedy it (which could be done by disapplying regulation 8B of the Universal Credit (Transitional Provisions) Regulations 2014 and then only treating Alice as having had new-style ESA for the 17 days for which it was actually paid in that assessment period (under the usual rule in regulation 73 of the Universal Credit Regulations 2013).

Advisers assisting mixed ESA award claimants migrating to UC might therefore wish to consider assisting them to appeal against the decision awarding them UC on the basis that the calculation of UC for the first assessment period is wrong and should only treat them as having received new-style ESA for the days for which it was actually paid. Advisers can obtain further assistance by emailing [email protected].