can you get a LCW/LCWRA element when you are on SSP?

This question came up on a training course i was delivering today - I have checked the regulations and there doesn’t seem to be anything that precludes you from passing the work capability assessment when you are on SSP and therefore getting the LCW/LCWRA element. Which could put you in the position where you can’t claim cont ESA but can get UC with the LCW/LCWRA elements.

I would welcome anyone else’s views on it.

I can’t see any reason why not either.  Just have to wait till the end of the 3-month ‘relevant period’ set out in Reg 28.  And, presumably, for the faffing around that will happen over the UC50 and medical report…..

20. Relationship with statutory payments

(1) A person is not entitled to an employment and support allowance in respect of a day if, for the purposes of statutory sick pay, that day—
(a) is a day of incapacity for work in relation to a contract of service, and
(b) falls within a period of entitlement (whether or not it is a qualifying day).

http://www.legislation.gov.uk/ukpga/2007/5/section/20

That’s ESA rules, I’d argue, not UC.

I think you might be right.

Having read the post properly I understand the Q now.

Still looking for the answer.

It does look like an oversight or departure (theoretically.)

I’ve approached it as (sort of, UC is a new* universe) replacing the ability to get IS as a top-up when on SSP before ESA/IRESA kicks in under the old system.  UC tops up wages, benefits, anything really, so I can’t see why it shouldn’t do it with SSP.

(*and deeply strange - it is, as I’ve contended before, a sausage, made out of the mashed-up bits of the old benefits)

I think I have the answer.

Either SSP increases to 16xNMW hourly rate thereby negating the obligation to carry out the WCA.

But seeing as employers are likely to baulk at that, particularly as the Percentage Threshold Scheme has been abolished, it’s very unlikely to happen.

The only logical step I can foresee would be to reform the current SSP system.

Reduce eligibility to SSP from 28weeks to 13weeks.

I’m not sure why this is a problem that would need legislating away? Presumably, someone on special rules would have LCWRA from day one of sickness, and so have that element included in UC to top up their SSP?

[Hm, LIsson Grove’s QBC doesn’t like this scenario ... error message: “Claimant who is subject to ESA cannot receive SSP.”]

There also seems to be provision under regulation 41(2)(a) for claimants on disability benefits to have a WC assessment even if they earn above the ‘relevant threshold’  - now 16 x minimum wage £104 (rather than the earnings limit of £101 for ESA). This should probably be a different thread but seems linked to me.

Regulation 41 explains when an assessment can be carried out and 41(2)(b) allows for assessment where the purpose is reviewing a previous determination of LCfW or WRA. That is the only place I can see where there is provision for removing the LCfW element from those already getting the element whose earnings subsequently rise above the relevant threshold?

The CPAG book at page 1004 refers to last years book p.1041 which explains ‘if you work you are usually automatically treated as not having LCfWork if earnings are above the relevant threshold’. The note is to regulation 41 which explains that assessments will not be done for most people with earnings over the threshold but does not seem to include an automatic disentitlement to the element if earnings rise….only an ability to review. Can anyone tell me if this is a misunderstanding or perhaps many misunderstandings?

Jon (CHDCAB) - 04 February 2015 11:17 AM

I’m not sure why this is a problem that would need legislating away? Presumably, someone on special rules would have LCWRA from day one of sickness, and so have that element included in UC to top up their SSP?

[Hm, LIsson Grove’s QBC doesn’t like this scenario ... error message: “Claimant who is subject to ESA cannot receive SSP.”]

For me it’s not that its a problem that needs legislating away but rather why has it been ‘legislated in’ in the first place?

Why deviate from what was already in place and for the betterment of the claimant?

Having SSP (med3/earnings threshold) and a sickness benefit (albeit an element) via a separate test (LCfW) doesn’t seem quite right and an unnecessary complication.

For instance - week 20 no MED3 but assessed as LCfW.

There is on going ‘improvement/reform’ in sickness absence and there are probably further reforms to be introduced in the second half of 2015.

Then again maybe not?