Entitlement to LCW/LCRWA status

Hello

We’re wondering what happens to a claimant who has LCW/WRA and then returns to work. Regulation 40(1) of the ESA regs appears to be the one that prevents a claimant from being entitled to ESA whilst working, subject to paragraph (2) which refers to the exceptions (councillors etc.) and permitted work (reg. 45).

So regulation 40(1) states that a claimant is to be ‘treated as not entitled to ESA in any week in which the claimant does work’ (except work listed in paragraph 2) and reg. 44 states that a person is treated as not having LCW during any period when reg 40(1) applies. Regs 40(1) and 44 clearly state that the claimant is treated as not entitled to ESA ‘in any week’, it doesn’t say that their status as a person with LCW/WRA is ended. The discussion of the regulation at page 1105 of Sweet & Maxwell talks about ‘that period of non-entitlement’. It also states in the commentary that ‘it is submitted that the regulation can operate despite the fact that, applying the WCA, the person in fact has LCW’. The point is that regs. 40(1) and 44 preclude entitlement to ESA for any week in which someone works, but it doesn’t appear to end LCW status just because a person has started work. I may be very wrong on this, but that’s one possible reading. Is this reading correct? It of course seems counterintuitive.

If it is correct, what does this mean for a claimant who returns to work? Do they retain their status as a person with LCW whilst working, with that status lying dormant unless the DWP supersede it by doing an new WCA, ready to be picked up again if they come out of work? The above reading of the regulation suggests that this may be the case; as we know from other conversations on Rightsnet, the status of a person with LCW is independent of any benefit claim (see discussions on ‘credits only’ claims for ESA which aren’t claims for ESA; they’re just people being credited as having LCW). 

So for the sake of argument, if someone is on ESA with the WRAG,  starts work of 30 hours per week, doesn’t have a new WCA, works for six months, then can’t work any more, claims UC, do they still have LCW status? Has it persisted through their period of work? It seems from regs. 40 and 44 that it may have done; they were just treated as not having LCW during the weeks when they worked.

Any thoughts?

Cheers

Alex

Doesn’t his fall down because of reg.19 of the UC (Transitional Provisions) Regs 2014?

Transition from old style ESA

(b) the claimant is to be treated as having limited capability for work for the purposes of regulation 27(1)(a) of those Regulations and section 21(1)(a) of the Act.

Your client wasn’t entitled to ESA at the point of a UC award being made, so there is no LCW to carry over.

Otherwise, reg.39 requires LCW to be assessed under assoicated provisions or those for new style ESA.

That’s correct in terms of the example given, but more generally, reg. 40(1) needs to be read with regs 44 - 46.

In summary;

- reg 40 (1) provides that a person is not entitled to ESA in any week in which the person does work
- but para (2) provides for certain exceptions (work as a councillor, permitted work under reg 45 etc)
- it also provides that the regulation is subject to reg. 46 (effect of work on C-ESA where a person is receiving certain regular treatment)
- reg 44 (1) provides for the general rule that where a person is caught by reg 40 (1), they are also to be treated as not having LCFW
- the exception to that in para (2) is for those who remain entitled to C-ESA (under reg. 46 because of specific regular treatment) but whose entitlement to IR-ESA is extinguished due to their income from earnings exceeding their applicable amount.

So, in my view, even if reg. 19 of the UC (TP) Regs did not operate to preclude entitlement in this particular scenario, there would still be a bar to a person retaining LCFW status.