× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Universal credit administration  →  Thread

When does the 3 month waiting period for UC apply

katrina.kemp
forum member

Notting Hill Genesis

Send message

Total Posts: 3

Joined: 27 August 2015

Hi All, I have a case I’m working on but not sure if I’m right or wrong. A resident applied for UC on 18th June 2020 and declared in their journal they were unfit for work. They were not able to get a sicknote until 6th August 2020 but it was backdated to 18th June 2020. Prior to this she had a call from her workcoach who said based on what you have written about your health do not look for work but provide a sicknote asap. They then got a UC50 shortly afterwards and declared to have limited capability for work and work related activity on 10th September 2020. But UC will not pay the extra element until 10th December 2020, due to needing to be unfit for work for more than 3months. is this correct?

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Good morning.

Good question. The date from which the LCWRA element is payable on a UC claim following a work capability assessment which finds a claimant to have LCWRA is determined by regulation 28 of the UC regulations 2013.
Regulation 28 states that an element may be payable in the assessment period 3 months following ‘the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations’.

So the burning question is, is the day ‘on which the evidence was provided’ the day that the evidence was supplied to the department by the claimant, or the date that it applied from (or was backdated to)? I think there’s a strong case to say that it’s the latter and I’ve successfully argued this. It’s obviously quite routine to only give a sicknote in a few weeks after a UC claim was submitted, that is backdated to the date of claim. I’m not aware of any case law on the issue but there may well be some.

I hope that helps at least insofar as it points you to the right regulation.

Cheers

Alex

Va1der
forum member

Welfare Rights Officer with SWAMP Glasgow

Send message

Total Posts: 706

Joined: 7 May 2019

As the other Alex stated, I think the argument can be made that the relevant period should start when the health condition is reported, rather than when the evidence is submitted, and I’ve also successfully argued this.

I’m growing increasingly concerned that someone at DWP has decided that the relevant period should be applied from a different period than when the health condition is reported, as I’ve seen a growing number of these cases.

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Just been looking at the DWP’s guidance on this issue at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864911/admf5.pdf

In your case, they’re probably relying on the example below, which seems pretty mean-spirited to me - this lady’s ‘relevant period’ (i.e. waiting period) only starts in January, because despite being ill since the previous November, she didn’t submit medical evidence to that effect because she was in hospital. But this is just guidance, not the law and I would certainly be inclined to argue as per my previous post.

Example 2
Petra has been entitled to UC since 11.11.13 after being made redundant. Her assessment period begins on the 11th of every month. She is admitted to hospital on 27.11.13 for emergency surgery, and is discharged on 28.1.14. On 30.1.14 Petra sends in a hospital doctor’s statement signed on the date of discharge, which states that she is not fit for work from 27.11.13 for at least three months. Petra continues sending in further doctor’s statements. The relevant period begins on 30.1.14, and ends on 29.4.14. This falls in the assessment period beginning on 11.4.14. Petra is treated as having LCW while she continues to recover from the surgery, and also has LCWRA. The LCWRA element is included in her UC award from 11.5.14.

Charles
forum member

Accountant, Haffner Hoff Ltd, Manchester

Send message

Total Posts: 1411

Joined: 27 February 2019

I don’t think there is any question in this case. The relevant period should start at the date she informed UC about her health condition. See Note 2 in Para F5031 in the guidance linked to above.

Timothy Seaside
forum member

Housing services - Arun District Council

Send message

Total Posts: 539

Joined: 20 September 2018

Charles - 29 October 2020 12:27 PM

I don’t think there is any question in this case. The relevant period should start at the date she informed UC about her health condition. See Note 2 in Para F5031 in the guidance linked to above.

I’m not convinced about that. Reg 5 of the Medical Evidence Regs says that you can self-certify for the “first 7 days of a spell of incapacity”. I don’t think there’s anything in the Contributions & Benefits Act to suggest that the period only applies during a benefit claim. So if the person claims UC from the first day of their period of incapacity, they can self-certify and satisfy the ME Regs. But if they had already been incapacitated for more than a week by the time they claimed UC, I’m not sure self-certification is an option.

However, I wonder if Reg 2(1A) covers them? Is it reasonable to provide a medical certificate via an online application? If it’s not, then the applicant can satisfy the ME Regs and so fulfill the requirements of Reg 28 of the UC Regs.

Charles
forum member

Accountant, Haffner Hoff Ltd, Manchester

Send message

Total Posts: 1411

Joined: 27 February 2019

What is wrong with the self-certification being provided on day 1 of their claim but relating to an earlier period from before the claim? I think Reg 28(2)(b) is still satisfied.

Timothy Seaside
forum member

Housing services - Arun District Council

Send message

Total Posts: 539

Joined: 20 September 2018

Charles - 29 October 2020 01:53 PM

What is wrong with the self-certification being provided on day 1 of their claim but relating to an earlier period from before the claim? I think Reg 28(2)(b) is still satisfied.

I think the DWP might argue that evidence of the start of incapacity six months before a claim was not “evidence of their having LCW” - but evidence of their having had LCW. Reg 28 appears to me to be talking about evidence of ongoing LCW.

So I’m keener on Alex’s argument about the meaning of “the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations” - which could mean the first day it was provided to the DWP, or the first day it provides evidence for. Although I can’t help feeling it could have said “the first day for which the claimant provides evidence” if that’s what it meant.

And I’m becoming fond of my argument that they could fulfill the ME Regs straight away if it was “unreasonable to require [them] to provide” a medical certificate - which I think is an arguable point at the start of a claim, especially when it is all online or over the phone.

I take heart from the fact that the Alexes have both had success in arguing that the three months should start from when the claimant first reported LCW. As with any legal case - run all the arguments you think could work.

katrina.kemp
forum member

Notting Hill Genesis

Send message

Total Posts: 3

Joined: 27 August 2015

Update: So I have since asked for a MR - challenging the decision that the medical evidence in the form of sicknote and GP letter supports limited capability for work and work related activity, therefore this satisfies ME being supplied. 30 minutes after this upload there has been a note on the journal asking for the claimant to supply further medical evidence by 5th November?

Timothy Seaside
forum member

Housing services - Arun District Council

Send message

Total Posts: 539

Joined: 20 September 2018

Sorry, we’ve got a bit carried away with arguing the legal detail and haven’t really addressed your specifics.

I can’t see where 10 December could come into it, unless they are suggesting that it can’t be paid until the AP after that because that is three months after the LCWRA decision - which is nonsense.

Is DWP is saying she didn’t provide ME until 6 August and so she will be entitled to the LCWRA amount from the AP which starts after 5 November? That would be the AP beginning 18 November.

We all agree this should be challenged, although we have some different arguments about why:-
1. She notified the LCW at the start of the claim and this met the criteria for providing ME because she was allowed to self-certify under Reg 5 of the ME Regs.
2. She notified the LCW at the start of the claim and this met the criteria for providing ME under Reg 2(1A) of the ME Regs.
3. The medical certificate she gave DWP provided evidence of LCW from the start of the claim - so the relevant period in Reg 28 of the UC Regs started from that date.

Your latest post makes me think I’ve misunderstood the initial question. Are you saying you are only at the UC50 stage, and are waiting for a Work Capability Assessment? If that’s the case then presumably they are asking for medical evidence because it’s been three months since the last medical certificate - either out of habit or because it really has ended. That will ensure she continues to be treated as having LCW.
After the WCA, if she gets LCWRA then it should be paid from the AP which starts after three months from the date which we have been arguing about above. DWP will probably argue it is 6 August. We are all saying she should argue it is from 18 June (i.e. it should be paid from the AP beginning 18 September).

[ Edited: 29 Oct 2020 at 04:26 pm by Timothy Seaside ]
Va1der
forum member

Welfare Rights Officer with SWAMP Glasgow

Send message

Total Posts: 706

Joined: 7 May 2019

EDIT: Thought too hard, forgot what point I was actually trying to make with this post. Will try again tomorrow :)

[ Edited: 29 Oct 2020 at 06:53 pm by Va1der ]