UC with LCW, working more than 16 hours x minimum wage

If a client transfers from ESA to UC with either LCW or LCWRA are they able to start work once on UC of more than the 16 hours x minimum wage threshold without automatically losing their LCW status? 

I think there was previously some lack of clarity about whether they needed to have undergone the assessment while on UC rather than transferring to UC from ESA with LCW in order to retain LCW when working over the earnings/hours threshold.

My understanding is that you won’t get referred for a WCA if your earnings are more than16 hours x minimum wage threshold (unless you also get DLA/PIP) but if you have transferred over from ESA and already have LCW, or have LCW from a UC WCA, earnings over the threshold do not affect it. This seems to agree https://www.entitledto.co.uk/help/Universal_Credit_Work_Capability_Assessment

Subject to the usual caution that if the nature and/or amount of work contradict the reasons for the LCW/LCWRA decision that might in theory prompt a reassessment.

It looks to me like Reg 41(2) of the UC Regs says that there has to have been an assessment under the UC Regs or the 2013 ESA Regs (so for ‘new-style ESA’). Given the way Reg 39(1) is structured, I am struggling to see who someone who is treated as having LCW(RA) on transfer from ‘old-style’ ESA can be said to have been assessed under either provision.

Hopefully the DWP don’t see it that way, though.

Jon

Hi Jon

I’ve worried about this issue before. The only ‘solution’ I could think of was to say that the right to make a “fresh determination [...] in accordance with the UC Regulations” provided by Reg 19(7) of the TP Regs includes the right to make an assessment, and overrides the “may not carry out an assessment…” of Reg 41(2) of the UC Regs.

If that is the case, Reg 41(2) does not actually stop an assessment being carried out in such cases, and therefore they will not fall to be treated as not having limited capability for work.

Hi Charles,

I think that it is worth noting that pretty much everyone who would be caught by Reg 41(2) at their UC date of claim is going to be earning too much to be properly entitled to ESA in any event. So there should be a period on UC to try to get things sorted out during which there is no doubt that the LCW(RA) status continues.

So I think that someone who isn’t yet earning that much and has a job for over 16 x NMW due to start soon should probably at least consider trying to convince the DM to make a further LCW determination for UC purposes, and simply base it on the old ESA paperwork. But I doubt the DWP will be amenable to that approach, and it won’t be an easy decision for the client to make.

And consider a PIP claim before the work starts too if that might be appropriate, of course.

Jon