LCWRA, ESA and UC

Hello folks

I have a client who was found to have LCWRA in relation to a new-style ESA claim. This in turn led to him being entitled to the LCWRA element on his UC claim. If he then starts work, over the ESA permitted work limits, this would of course end his ESA. But would it end his LCWRA element for UC? I don’t think it would, but would appreciate any opinions. The LCWRA element is included initially because of the ESA WCA outcome, but I can’t see any mechanism via which it would end as a result of the ESA ending. He’s not failed the WCA, he’s just had a change that ends the ESA (i.e. work over the permitted work limits).

Obviously the ability to keep the LCWRA element in work would make a huge difference to him, as he would also get the work allowance as well as the higher maximum UC amount.

I’m looking at https://www.legislation.gov.uk/uksi/2013/376/regulation/41/made

Any thoughts on this would be much appreciated.

Alex

I think your client might retain LCWRA status initially. Reg.40 of the UC Regs provides:

Limited capability for work and work-related activity
40.—(1) A claimant has limited capability for work and work-related activity if—

(ii)the claimant has limited capability for work related activity on the basis of an assessment under Part 5 of ESA Regulations

You’re saying that this has been done i.e. WCA carried out for NS-ESA under part 5 of the ESA Regs. As far as I can see, Part 5 of the ESA Regs is only about the LCWRA assessment so the separate provisions about the effect of work on ESA entitlement are contained in Part 6 and are therefore not troubled here.

Reg.38 of the ESA Regs states that if reg.37(1) applies i.e. they are working, then the person is not be treated as having a limited capability for work as well as not being entitled to ESA but as that is also in Part 6, I can’t see that affects the provisions above. Has the client been assessed under Part 5 of the ESA Regs? Yes they have and they have been assessed as having LCWRA.

However, I think DWP could then use reg.41(2)(b) to review that situation so the LCWRA status may not last very long.

Thanks Paul, that’s really helpful, of course I am mindful of the fact that the DWP may reassess his capability for work in light of him undertaking work, but in the meantime at least, there appears to be an argument for the LCWRA status continuing on the UC claim.

Thanks again

Alex