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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

UCFS reclaims and LCW: no linking rule? 

EKS_COTTON
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Hi everyone,

My client made a claim for UC in FS area in March 2017 and supplied medical certificates.  Finally in Jan 2018 (!) he was subjected to a work capability assessment and it was found that he had LCW.  He also receives PIP standard rate daily activity.

He has been earning a bit here and there (can do so without it affecting his claim as he is getting PIP) but in his last AP he earned more than his UC award and so it was stopped.

As far as I can see, there is no linking rule (as there was under ESA) for LCW etc being restored without waiting period under UC. I have checked the legislation.  Page 1021 of CPAG doesn’t really answer the question as far as I can tell?

However, the client has been advised on his UC journal

If your income results in your Universal Credit entitlement (which includes the element for Limited Capability for Work) being reduced to zero, then your claim will be closed.  However, if your claim is closed due to the amount of your income reducing your entitlement to Universal Credit to zero and you were to reclaim within six months from the date your claim was closed, the Limited Capability for Work would still be applied to your claim.

Can anyone provide any clarity on the linking rule point?

Thanks!

EKS

Paul_Treloar_AgeUK
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Sticking my neck out here but I think reg.22A of the UC Regs allows the reclaim within 6 months and reg.41 allows the person to both be treated as not having LCW for the period their earnings exceed the relevant threshold but also that another assessment doesn’‘t need to be carried out where they have previously been assessed as having LCW.

The commentary in Sweet and Maxwell suggests that a DM could decide to carry out another assessment but they don’t have to (presumably because reg.41(1)(a) refers to “falls to be determined for the first time whether a claimant has LCW or LCWRA” and your client has already been assessed as such),

I might be completely wrong here mind, I’ve just had the S&W delivered so trying to get my head around the contents….

Martin Williams
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Paul- not sure which reg 22A you looking at but don’t think it does that…

Think the answer is reg 28(3)(a) and (4) of the UC Regs which means claimant does not have a 3 AP waiting period if had a previous award of UC within 6 months of the new claim that had ended due to financial conditions not being met (ie too much earnings in this case).

Trick is that reg 28 now only refers to this for the LCWRA element so also have to look at the savings protecting against abolition of the LCW element in SI 2017 No. 204- luckily these help out see sch 2 part 2- para 8(2) and whichever of para 9 to 15 also applied to save the LCW element before.

That means you can use the older version of reg 28:

Period for which the LCW or LCWRA element is not to be included
28.—(1)  An award of universal credit is not to include the LCW or LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.
(2)  The relevant period is the period of three months beginning with–
(a)  if regulation 41(2) applies (claimant with monthly earnings equal to or above the relevant threshold) the date on which the award of universal credit commences or, if later, the date on which the claimant applies for the LCW or
LCWRA element to be included in the award; or
(b)  in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.
(3)  But where, in the circumstances referred to in paragraph (4), there has been a previous award of universal credit–
(a)  if the previous award included the LCW or LCWRA element, paragraph (1) does not apply; and
(b)  if the relevant period in relation to that award has begun but not ended, the relevant period ends on the date it would have ended in relation to the previous award.
(4)  The circumstances are where–
(a)  immediately before the award commences,  the previous award has ceased because the claimant ceased to be a member of a couple or became a member of a couple; or
(b)  within the six months before the award commences, the previous award has ceased because the financial condition in section 5(1)(b) (or, if it was a joint claim, section 5(2)(b)) of the Act was not met.
[...]

Paul_Treloar_AgeUK
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Thanks Martin, thought I was overstretching mysef there.

EKS_COTTON
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Thanks guys, much appreciated.

EKS_COTTON
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Sorry Guys - one more question on the meaning of re 28(3)(b) in relation to my clients case.

His UC85 suggests that his LCW decision, made in Jan 2017, will be up for review in Jan 2018.

He is not claiming UC now. If he reclaims in say February (before 6 months up but after the LCW period up) what will happen to his new UC award in terms of the LCW element being restored?

I wasn’t sure whether term relevant period referred to something else - isn’t defined in the regs as far as I can see.

EKS

Daphne
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The suggested review period in UC85 is just an indication or when a review might be carried out - but LCW/LCWRA status isn’t awarded for a fixed period - it stays in place until there is a valid supersession - which is usually because the claimant is put through a new work capability asessment. If the DWP don’t do that the LCW status stands as it is so your client should be fine.

The relevant period is basically just the assessment period (see 28(2) quoted above) so isn’t relevant here as your claimant has aleady been through that.

[ Edited: 20 Nov 2018 at 10:23 am by Daphne ]
EKS_COTTON
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Many thanks Daphne.