How should DWP determine LCA/WRA once claimant goes back to part time work?

Not sure whether this question has been covered anywhere else - apologies if it has.

It is a question about repeat WCA in UC.

Background

My client was limited capability for work element in their UC pre the April 2017 change.

He has gone back to work part time.  Earns about £1000 net profit per month.

Regulation 41(2) states that a repeat work capability assessment MAY be carried out because his earnings exceed the threshold.

The ADM guidance (G1035) says that until it is determined that the claimant does not have Limited capability for work the award will continue to include the element.

The client has been asked to declare a change of circumstances on his UC log saying that he has gone back to part time work.  His doctors have advised that he still is limited as to how much work he can do given his mental health condition.

My question/concern

How will the DWP determine that he does not have limited capability for work?  Will they simply use his declaration or do they have to carry out another WCA? The Regs say may not must.

Any thoughts gratefully received.

In solidarity,

EKS

Hi Emma

He hasn’t made a declaration that he doesn’t have limited capability for work so they cannot take the LCW element away on that basis. He’s just declaring his work and it might be worth highlighting the limitations in him doing it.

They would need to show grounds for supersession if they were to take it away (see CPAG pg 1287) so they would need to show a relevant change of circumstances ie that you no longer met the criteria to score the 15 points or reg 29 - they could send your client for a WCA in order to try and get evidence to show this but of course any decision would be challengeable.

I have been looking at this issue preparing training for an organisation that supports claimants (including ‘supported work’) with disabilities / long term health conditions to find employment usually under the ‘permitted work’ (PW) rules or into ‘full time work’ with WTC etc. Many of their clients have learning disabilities with a family member as their appointee.

The PW rules provide a degree of certainty as to what will happen - if the claimant exceeeds the hours or earnings rule they are not entitled to ESA for that week.

However under UC exceeding the ‘relevant [earnings] threshold’ does not ‘automatically’ lead to loss of entitlement but can lead to a new WCA (with uncertain outcome). How will they know if their earnings have triggered referral for a WCA (pending a UC50 / assessment appointment letter)?

So generally making it more difficult to advise a claimant about the impact of taking paid work and making the position more uncertain for them. Obvoiusly not a positive situation for vulnerable claimants and their families.

Then consider the position of a claimant whose earnings fluctuate so only in occassional assessment periods their earnings exceed the ‘relevant threshold’ - will a ‘one off’ exceeding of the threshold trigger a WCA?

If they do have have a WCA and are found ‘fit for work’ then the impact on the earnings allowance, conditionality etc.

And then explain to the claimant / appointee how UC is a simplification!

As an aside but related issue we are seing increasing number of claimants where undertaking work under PW or moving into ‘full time’ work appears to trigger a DLA/PIP supersession on the hackneyed reasoning that ‘the work undertaken is not compatable with the award of DLA/PIP’.

The word “may” in statutes usually connotes a power as opposed to a duty, where “shall” would usually be used.  So, it allows an officer to do something but doesn’t oblige him to do it.  The situation is slightly different with regard to “may not”.  Imagine a child asking her mother if she may go to the park with her friend.  When her mother replies “no you may not” she is unequivocally saying no.

When the phrase “may not” is also qualified by the word “unless” then a plain reading of the statute is that the officer must not exercise the power granted to him except in the specified circumstances.  This is all the more so where the power can be exercised under a different statutory provision.

It is a rule of statutory interpretation that single words or phrases must not be analysed in isolation but always within the context of the wider statute, looked at as a coherent whole.

Thanks for the feedback all - very useful.

So far I have had no success in getting DWP decision makers to appreciate statutory interpretation on this sort of issue. 

Seems like yet another way of reducing claimants rights.

Peter - The hackneyed reasoning that ‘the work undertaken is not compatable with the award of DLA/PIP’ is troubling.  Pretty regressive.  I should hope it wouldn’t stand up at appeal?  Any experience of how judges have viewed this yet?

EKS_COTTON - 28 November 2017 11:30 AM

Thanks for the feedback all - very useful.

So far I have had no success in getting DWP decision makers to appreciate statutory interpretation on this sort of issue. 

Seems like yet another way of reducing claimants rights.

Peter - The hackneyed reasoning that ‘the work undertaken is not compatable with the award of DLA/PIP’ is troubling.  Pretty regressive.  I should hope it wouldn’t stand up at appeal?  Any experience of how judges have viewed this yet?

For claimants who already have LCFW but start earning with earnings over the threshold it remains to be seen if/when this will trigger a new WCA. Will it be on the recommendation of the work coach? I don’t know. Perhaps someone in an area that has been full service for a while has experience of this in practice?

I delivered the training mentioned above today. Fair to say the organisation was extremenly worried about the implications. As their funding is target driven by getting clients into ‘sustainable’ employment it brings them into conflict in situations where the claimant could be worse off in work and moving onto UC due to losing the SDP/EDP etc.

My experiance at tribunal re DLA/PIP @ work is that they apply the legislation starting with SS&CS;(DA)Regs 6(2)(a)(ii),  7(2)(c)(ii) and 7A(1) and apply the burden of proof on the SSWP to show grounds for supersession etc. In other words tribunals do not take the simplistic approach that the claimant is able to work so their limitations must have reduced / condition improved and they should have known and told us so the overpayment is recoverable.

Hello everyone,

Sorry to resurrect this again, but the client (long term sick with mental health issues, has been assessed as LCW under UC, now doing part time work) has got back to me with this:

‘I spoke with the UC helpline with a query on reporting my expenses.

The adviser then asked me to provide a current fit note, stating my current medical fitness. She said once I had provided fit note then this would trigger the work capability assessment process again. She also said there was a note on my journal asking me to do this, but I can’t see this note there..’

He is not obliged to do this right?  He is getting flustered and conflicted because UCFS keep telling him to provide a sick note even though they haven’t posted this on his UC log. 

Would be grateful for feedback on what he should do or me as his adviser? E.g. post something on his UC log?

Best,

EKS