On contributory and income-related ESA when transfer to UC and DWP takes contributory ESA into account for whole of first assessment period

Use this template if all the following apply:

• your client was receiving contributory ESA, topped up by income-related ESA when they claimed UC
• they received the 2-week run-on of ESA
• their contributory ESA was treated as unearned income for UC from the first day of their UC award

The template assumes that your client underwent managed migration. If they have not undergone managed migration, then you'll need to edit the template.

The legal arguments in this template include:

1. A claimant who migrates from ESA to UC and whose ESA award included both income-related ESA and contributory ESA is worse off in their first UC assessment than someone whose ESA award was solely income-related ESA for the following reasons:
   • on migration to UC from ESA, income-related ESA ‘runs on’ for two weeks after the start of the UC award (reg 5 Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations) and contributory ESA continues as old-style contributory ESA during this two-week period, then converts to new-style contributory ESA
   • the definition of ‘employment and support allowance’ in reg 2 Universal Credit Regulations 2013 (the 'UC Regs') does not cover income-related ESA or old-style contributory ESA, so neither can be considered to be unearned income under reg.66(1)(b)(ii) UC Regs and therefore they do not count as income for UC
   • however, reg 8B Universal Credit (Transitional Provisions) Regulations 2014 (the ‘UC(TP) Regs’) treats a UC claimant whose old-style contributory ESA converts to new-style contributory ESA after the end of the run-on period, as having been entitled to their award of new-style contributory ESA from the first day of their UC award. The result is that all the contributory ESA received during the first assessment period reduces the UC award during that assessment period as it is considered to be unearned income under reg 66(1)(b)(ii) UC Regs.
2. It is argued that the effect of reg 8B UC(TP) Regs is that a claimant whose ESA award included both income-related ESA and contributory ESA is unlawfully discriminated against, contrary to art. 14 European Convention on Human Rights (‘ECHR’) read with art. 1 of Protocol 1, when the amount of UC they receive for their first UC assessment period is less than the amount of UC received by someone in similar circumstances but whose ESA award was solely income-related ESA.
3. Entitlement to a means tested benefit such as universal credit falls within the ambit of A1P1: Stec v United Kingdom [2005] ECHR 924; R (oao RJM) v SSWP [2008] UKHL 63.
4. The discrimination occurs on the ground of possession of contributory ESA. This is an 'other status' for the purposes of A1P1. Alternatively, or additionally, persons who are in receipt of contributory ESA have a more recent and/or substantial history as employed or self-employed persons (sufficient to meet the national insurance contribution conditions for contributory ESA) prior to their claims than persons on income-related ESA only. That more recent employment history is also an 'other status'.
5. For this difference in treatment to be lawful the SSWP must show it is justified.
6. If the difference in treatment is found to be unlawful, the First-tier Tribunal can avoid the discriminatory outcome by disapplying reg 8B UC(TP) Regs.

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• the benefits/tax credits your client was receiving immediately before their migration to UC
• The weekly amount of ESA your client was receiving on migration to UC
• Whether your client was in the ESA support group
• The date your client claimed UC
• The date your client requested a mandatory reconsideration of the decision on their UC entitlement in the first assessment period
• The date your client submitted the appeal

Information about the decision

• the date the DWP issued a migration notice to your client
• the 'deadline day' on the migration notice
• the date of the DWP's decision to award award UC
• if possible, a copy of your client's UC payment statement showing how their UC was calculated in the first assessment period of their award
• the date your client's entitlement to income-related ESA ended following the two-week run-on period
• the date of the mandatory reconsideration notice your client received after requesting a mandatory reconsideration of the DWP's decision