LCWRA - start date of element where claimant working

I’m wondering about a complicated case involving a client who, because of her PIP award, falls into the category of people who can be assessed for LCWRA even though employed, and, initially, earning more than the 16 hours’ minimum wage.  (regulation 42)

She became too ill to work, supplied her employer with FIT notes, and has received SSP for a few months.  She has now ended her employment, has notified UC of her illness, supplied FIT notes and asked for an assessment. By normal UC rules, the “relevant period” of 3 months before she could be found to have LCWRA and have the additional element, would be the day in which she notified UC of her illness, which is actually after she ended work.  However, is there an argument to say that, since she was already claiming UC, the start date of her “relevant period” was the date she became ill, and her GP first supplied her with a FIT note, which was the basis on which her employer paid her SSP.

Historically it has not been possible to receive both SSP and ESA. My client would not have been able to claim New Style ESA until her SSP ended, and SSP1 form supplied, but would the rules be different for the LCWRA element?  ESA (except for permitted work) would not be payable to someone paid earnings or SSP.  However, people who are actually working full or part-time and receiving earnings can be entitled to Universal Credit, and therefore I can’t see why it couldn’t in principle overlap with SSP (which is classified as earnings) and start with the first FIT note.  (There may be an argument about when she informed them that she was too ill for work, but I am just thinking out the principle at present.  Any ideas?

Hi Ruth, for people whose earnings are too high but who get PIP, reg 28 says the relevant period starts when your UC starts OR, if later, when you ‘apply for’ the LCWRA element (see reg 28(2)(a)). I don’t see any problem with SSP being payable at that time.

So I think it’s arguable that this is when the client informed UC that she was too ill to work, but maybe it’s arguable it was when UC started, if she claimed it because she was unable to work & this was clear in her application?? There has to be some communication with DWP I think (ie I don’t think you can go from when the GP first supplied her with a fit note if she didn’t talk to UC about it & never mentioned to them that she was too ill to work). But I’m not 100% clear if you’re saying she was already on UC when she became too ill to work.

If you’re saying she only earned too much initially, was already on UC & then became too ill to work & was on SSP only, so under the £722.45 earnings pcm, then it would be reg 28(2)(b) which applies - in which case, assuming the relevant period had not already started under (a), it would start when she first provided medical evidence. Again, I think that has to be to DWP (ie not the date of the fit note, but the date it’s supplied to them).

As well as reg 28 UC Regs, we also have to think about the Social Security (Medical Evidence) Regs I think. They say you have to provide evidence of LCW for each day until you are assessed, but under these regs (reg 2) I don’t think it matters so much when you produce it, as long as you do provide it to DWP & it is in respect of each day.

Not sure how much this helps: reg 28(2)(a) may not help that much but sometimes, in the first AP in which someone is off sick, earnings are still too high (cos SSP only starts part way through), so it could be relevant to her, depending on what she said to UC and whether that could count as ‘applying’ for the LCWRA element.

Sorry I took so long to reply, mainly because it is so complicated I needed to set time apart to work it out and get a fuller picture from the client. This is really helpful. The client was already on UC when she was working and before she went off ill.  She didn’t initially notify DWP that she was ill. Following what you said,  I am mulling over one of four dates:

(a) when she first requested a WCA (this was after she was off work and on SSP)
(b) a month before the date she first requested a WCA, on the basis that, as someone ill, she had good cause for not notifying the DWP earlier. (She also had no idea that she could until advised, but I don’t think this is accepted as good cause)
(b) the date when she first provided a FIT note (when she was asked which was a month later)
(c) the date on the FIT note she provided, which might have been backdated.

So I will have a look at the legislation and see if I can work out what is the earliest day we can claim for.  But in all cases it does look as if the requirement for SSP not to be paid is relevant only for New Style ESA and is irrelevant to the LCWRA element in UC.

WillH - 20 November 2023 12:03 PM

Again, I think that has to be to DWP (ie not the date of the fit note, but the date it’s supplied to them).

I’ve always thought like this as well, but have a look at Example 2 following paragraph F5031 in the ADM.

Yes, this example gives pause for thought.  You can see that where someone had an emergency admission to hospital and was in hospital for almost two months,  it would be grossly unjust not to date the relevant period from the date of the admission.  But that leads us to wonder about less clear-cut cases - where the GP confirms the client is very ill, but they are not, for whatever reason, admitted to hospital. Should they be treated less favourably?  And how do we identify “very ill” anyway?  The FIT note simply says that someone is fit or not fit for work.