The Benefit Cap and LCWRA - From what date?

Afternoon All,

I am hoping this is a simple question - I have tried to search but can’t find a direct answer. In short my question is - When someone is awarded LCWRA, is the benefit cap only lifted from the date they are entitled to the element (i.e. after the waiting period)?

And in the longer version of the question, if so, why? The reason I ask is in more detail below:

I understand that when someone claiming UC goes through the WCA, and is ultimately awarded LCWRA, a work allowance is retrospectively applied from the assessment period they declared the health condition leading to the WCA (I know this thanks to a very helpful thread on this site! https://www.rightsnet.org.uk/forums/viewthread/15057/#78368)

My question is, if this applies to the work allowance, then why doesn’t apply to the benefit cap?

It seems to be down to a case of wording in the regs?

So ADM Chapter E5: Benefit cap states:
1 UC (TP) Regs, reg 20 Receipt of certain benefits
E5042 The BC does not apply where
1. the LCWRA element is included in the award of UC1

But for the work allowance the guidance states (https://www.gov.uk/government/publications/universal-credit-work-allowances/universal-credit-work-allowances)

You will be eligible for a work allowance if you (and/or your partner) either have:
responsibility for a child
limited capability for work

So in the ‘no mans land’ between applying declaring a health condition and being assessed and awarded a LCWRA someone has ‘enough’ LCWRA to get a work allowance, but it’s not enough to get the benefit cap lifted. It seems perverse?

Have they deliberately written the regs for the cap to state ‘when the element is included’  and not just ‘when they have limited capability for work’ just to pay people less for as long as possible?

Thoughts, or indeed guidance if I have misread this completely and they can get it before the waiting period!

Thanks
Gemma Macmillan Advisor

This an interesting one, and I think you are correct. The Regs are certainly worded differently. Whether it was intentional or not, I have no idea!

https://www.legislation.gov.uk/uksi/2013/376/regulation/22

https://www.legislation.gov.uk/uksi/2013/376/regulation/83

Would also be consistent with HB to limit it to cases where there is an element/component:

75F.—(1) The benefit cap does not apply where—

(a) the claimant or the claimant’s partner is receiving an employment and support allowance under Part 1 of the Welfare Reform Act which includes a support component;

https://www.legislation.gov.uk/uksi/2006/213/regulation/75F

Thanks both for your replies.

I thought I was reading the regs correctly, but I was secretly hoping someone knew of a different interpretation that would increase their entitlement.

The waiting period has always seemed a strange and unfair idea to me, and this being part of it seems to be doubly punishing people!

Oh well, such is the system. Thanks for getting back to me.