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Limited capability for work assessment period under UC?
Hello all.
I have a memory of there being discussion that the assessment period under UC being very different from ESA. I am advising a social worker who is working with a young person with cancer who falls into a UC area. They are not terminal. They have made a claim for UC and attended the initial work focused interview. The jobcentre have agreed to telephone-based work related activity for now, pending the WCA. However, this is someone with cancer so falls under the automatic limited capability for work related activity per :
You can be treated as having limited capability for work and work-related activity (LCWRA) without having to undergo a Work Capability Assessment (WCA) if you are:
•terminally ill, or
•pregnant, or
•receiving treatment for cancer, or
•disabled and over Pension Credit age.
Should this be from the beginning or is there an equivalent 13 weeks where some degree of work related activity is now expected? I’m suspicious…
As far as I can see, UC Regs allow for Limited Capability for Work and Work-Related Activity (why can’t they call it Support Group?):
Reg 40(5) Subject to paragraph (6) a claimant is to be treated as having limited capability for work and work-related activity if any of the circumstances set out in Schedule 9 applies.
Schedule 9 (3) The claimant is– (a) receiving treatment for cancer by way of chemotherapy or radiotherapy; (b) likely to receive such treatment within 6 months after the date of the determination of capability for work and work-related activity; or (c) recovering from such treatment, and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work and work-related activity.
…so I would say no work-related activity if this applies, and it should apply immediately and without a WCA.
Any thoughts?
That’s exactly the lines I was thinking along. Would be grateful if other people have similar thoughts.
The criteria are exactly the same between ESA and UC in terms of being treated as having LCW and LCWRA while awaiting, receiving or recovering from chemo, so your client will get the LCWRA element kicking in just as they would have done under ESA SC .
While the WCA is going on, no claimants have to do work related activity anyway. In the short term everyone just has to focus on getting better. :-) It is only once the ESA assessment phase - or UC relevant period - is done that those who only have LCW need to start on work related activity.
There is a difference though as to when the extra dosh appears . For ESA it’s from week 14 of the claim. For UC limited capability it’s from the first assessment period that begins 3 months after the day you tell UC you are poorly - so that could mean anything from week 13 to week 18. And unlike ESA you can’t backdate for up to 3 months if you are too busy getting your head round the diagnosis.
Finally, is your client in those parts of your borough with full service UC or is it still live service gateway? If the latter there is a “better off” consideration . If there is a glint of PIP in your eye, would they stand to get an SDP under ESA? If so they may well be better off moving off UC and onto Ir-ESA. If not UC LCWRA element trumps ESA SC+ EDP.
Despite the policy intent that “once on UC you stay on UC” you can escape the lobster pot ; it’s just a matter of getting the dates and sequence right and talking through a fascinated DWP that you can do such a thing :-). If their postcode has gone full service, then s/he would have to move which may feel a little too drastic :-(
Tom - as I understood it under UC technically you are subject to all work-related requirements until you have been assessed as having LCW or LCWRA (because you don’t come under any of sections 19-21 of the Welfare Reform Act 2012) - and there is no provision under UC to be ‘treated as LCW’ pending the assessment although there is under ‘new-style ESA’ if you qualify for that.
However, you can of course limit those work-related requirements because of your health problems.
But I’m happy to be corrected…
Hi, I’d concluded that s/he is automatically entitled to LCWRA after 13 weeks so payment between week 13 and 18 as per Tom’s post. After 13 weeks exempt from all elements of the Claimant Commitment.
Again happy to be corrected ....
Does anyone know of a real time decision by DWP?
Fair point, Daphne and apologies for not addressing the more jaw dropping part of your query Hfcab !
There is indeed a difference between ESA and UC in the period before the WCA decision is confirmed. That decision, by the way, may occur much earlier than the date when any consequential increase in benefit is triggered , especially if a decision is made on the papers or by a claimant meeting one of the “treated as” criteria.
For ESA, a client is in an assessment phase with GP’s fit notes evidencing illness until such time as the WCA decides otherwise. And if the WCA decides you are in the WRAG, that’s when any work requirements kick in.
There is though a precedent for harassing claimants earlier, as originally the ESA claims process involved a pre-WCA work focussed interview around week 8 of the claim. At least though that was after an ESA50 was in. However experience suggested this a) often had to be waived as initial claimants were too often busy being acutely ill and b)had little value - pre WCA - other than as a scene setting chat. But UC already has that in the Claimant Commitment interview.
For UC, the sensible ESA overall approach - to wait until you know more - has not been copied and pasted over. As things stand, then your client is technically in the “all work requirements” group, until they are confirmed as having LWCRA, but with a range of potential mitigations:
- for up to 2 weeks illness your fit note will exempt you from any requirements - UC Regs 99(4) , ADM para 3215
Thereafter, there is:
- the provision you allude to Daphne, to vary the terms of the Claimant Commitment to take account of health limitations - Reg 88 (1) and Reg 97 (6) . But I wonder though if these concessions - copied from JSA - are more for those who see themselves mainly as jobseekers / failed the WCA ie jobseeking within health limitations?
- temporary suspension in special circumstances of work related requirements for “as long as the circumstances apply” - UC Reg 99 see ADM para 3226-30 , in chapter J3 on the ADM dowloads page. https://www.gov.uk/government/publications/advice-for-decision-making-staff-guide
This does give the example of Chester a young man claiming on grounds of depression, who is indeed asked to do the same as your client ahead of a WCA. I wonder if this might be a bit of a default position within UC, a sort of conditionality-lite and something to put on a Claimant Commitment?
However In another scenario, he is given exemption from any work requirements to give the same protection as the first 14 days . There is then a new discretion, which - as in your client’s case - gives UC every opportunity to get it wrong :-)
My contention, would be that even the relatively light requirement of a phone interview is unreasonable and inappropriate when a) LCWRA status is flagged and on its way and b) the claimant will be going through huge emotional turmoil and uncertainty post diagnosis, with treatment plans developing and the unknown of how they are going to impact.
Such discussions would be more appropriate well into recovery at such time as the protection of LCWRA status might reasonably fall away. That is presumably the policy intent behind this “treated as” provision in the first place. For now, your client is likely to be in no fit state emotionally and even if s/he were have no knowledge as to when in recovery s/he might take advantage of work related support and what might be useful.
Most “treated a” requirements are sorted out before a UC50/ESA50 is sent out, possibly even within the 14 days grace that UC grudgingly allows, in what is termed the “Pre-board check”, This identifies claimants who can be treated as or are likely to be “treated as” and so not need an ESA50/UC50 . Information though to confirm cancer treatment plans may not be available at this stage, so the form does go out, but with the questions to establish that treated as exemption on them, with the other questions to be ignored. In prctical terms this may seem the sensible time to seek the info, but only if JC+ acts sensibly in the meantime :-). ESA lacks the space to be daft in this interim, UC unfortunately does not :-(
I guess we can try to close this space for silliness down by sending in the necessary info early if it is availabe? If UC can handle it. But if not and sllliness prevails - then it needs challenging. Hopefully a reasonable jobcoach/DM will rethink/overide the decision, but if we end up with some caselaw, so be it.
It would be nice if the UC design team can be prevailed in to join up some missing dots here, whether in the specific area of this “treated as” provision or by rethinking their overall approach to pre-WCA claimants. Perhaps they might want to talk to colleagues at ESA?
UC do then have the discretionary powers to do what they are doing, but it seems entirely unreasonable - to the point of unlawfulness - to misuse it as they are, especially they will have already identified your client as likely to have LCWRA and are in the process of confirming that. They could equally well not require this interview..
By the way, please feel free to encourage your client to drop in at the Maggie’s Centre near you - details are at https://www.maggiescentres.org/our-centres/maggies-west-london/ - for general peer, emotional and psychological support and/or to see my Benefits Advisor colleague, Jay . He has some notorious powers of persuasion and contacts within JC+, as I am sure you will as well
Or if thats a bit of a big step to take or they’d prefer the semi anonymity of online support, then they might want to sign up to the Online Centre, by registering at https://community.maggiescentres.org/home
..but if we end up with some caselaw, so be it.
There is already caselaw, namely, SSWP v IM. For the UT 3 Judge Panel it was axiomatic that any work-related activity or even WFI would occur only after the WCA had taken place (see paras 26, 67, 75, 88 & 93 of the judgment). Otherwise, the claimant would be left to face the consequences including substantial risk to health without having had any risk assessment, let alone the wholly inadequate one which the UT found the Dept had been operating under Reg 35. I see nothing in UC which changes that. Whilst there is no longer a general provision equivalent to Reg 30 ESA Regs 2008 for treating a claimant as having LCW pending the WCA, such status was not relevant to the above UT’s reasoning. Whether IM was benefiting from Reg 30 was not relevant to their analysis of Reg 35.
I see it as a question of who carries the burden of proof. Sections 21 & 22 WRA 2012 are both expressly subject to section 19 not applying. The relevant part of section 19 provides:
19(1) The Secretary of State may not impose any work-related requirement on a claimant falling within this section.
(2) A claimant falls within this section if–
(a) the claimant has limited capability for work and work-related activity,..(my emphasis)
The convention is that a party which needs to prove something carries the burden of proving it. Here, I think the SSWP needs to prove that the claimant who has applied for LCW does not have LCWRA before it can impose work-related requirements on him/her. It has been held that where incapacity “falls to be determined” that phrase refers to each day of claimed incapacity in the period of the claim (see para 8.2 of R(IB)8/04). The same is undoubtedly true of LCW. So once the claimant applies for LCW, s/he puts in issue their LCW/LCWRA status from day 1 of their application until the WCA decision is made. I appreciate that the burden, subject to Kerr, is on the claimant, at least where it’s a new LCW claim, to show that they actually pass the relevant tests, but that seems altogether different to the question of the burden of proving that work-related requirements are permissible before the client gets to sit those tests. After all, the Dept knows which tests need to be applied, and it surely cannot be right that it is allowed to rely on its own failure or delay in applying those tests so as to apply work-related requirements regardless. I don’t think this was even disputed by the SSWP in IM. On the contrary, at para 47 the SSWP submitted that the legislation was “crafted” in such a way that an action plan re work-related activity would not as a rule be available to the WCA DM.
I regard arguments that the Dept has discretion not to apply full work-related requirements ahead of the WCA in UC as similar to the SSWP’s in IM that the discretionary power in Reg 3 ESA(WRA) Regs 2011 was an adequate safeguard against a substantial danger to health arising.
In my view, as soon as the OP’s client is treated as having LCWRA then the protection of section 19 is available even if the LCWRA isn’t yet payable. But the burden of proof and IM suggest there’s protection under section 19 for that client and every other claimant awaiting their first WCA under UC regardless, from the outset until LCWRA is known.
Could be wrong. Only done a few UC cases so far.
I have just met a new client with related issues. He has been claiming UC as a job seeker from early 2016 through to July. In July GP gave sick note for 3 months which he handed in. He’s just got a second one to last to the end of December, just had one telephone appointment in the interim. I’m trying to advise on whether to end UC claim and put in ESA claim. Quite aside from the practical issues on changing payments etc what I’m not clear about is whether he will lose 3 months of component if he does this ie new claim for ESA starts the assessment phase from the start of that ESA claim or if it can take into account the period on UC where he was covered by a fit note.
Part of my thinking is also about when he is fit (or found fit) as we can probably squeeze him back onto JSA and the slightly easier conditionality if he’s been on ESA.
If anyone could advise on that I’d be most grateful.
Julie
.what I’m not clear about is whether he will lose 3 months of component if he does this ie new claim for ESA starts the assessment phase from the start of that ESA claim or if it can take into account the period on UC where he was covered by a fit note.
There’s provision in the UC Transitional Regs for, in effect, linking LCW/LCWRA status on ESA or credits with LCW/LCWRA status on UC. However, your query concerns the reverse of that, ie time spent awaiting assessment of LCW on UC counting towards the assessment phase of a subsequent ir-ESA claim (Gateway permitting). I don’t think it’s possible to link the two periods in those circs. I think you could ask for ESA to be backdated to the day after the last payment of UC but that’s about it. I think when they drafted the UC Regs they assumed the lobster pot principle applied to it. Consequently, I think a new assessment phase would begin in the ir-ESA.
Depending on when he decides to relinquish his UC, it might be worth insisting on a LCW assessment being carried out re the UC, otherwise he might lose out some LCW/LCWRA element, although if he only applied for LCW in July 2016 it seems he’s not missing out at present.