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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Date LCWRA element is paid from

 

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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This Case Manager seems to be saying that if the 3 month waiting period for LCWRA includes short months you don’t get the element until month 5:
“I have looked at the LCWRA award and it has been paid correctly and as per regulations. When awarded this group, you serve a period of 91 days before receiving the first award of the health component, and as such, if that period creeps into the fourth assessment period, it is paid from the next assessment period.”

Where does 91 days come from? UC Reg 28 says the relevant period is 3 months.

28 (2)b says: ” The relevant period is the period of three months beginning with–...the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.”

In this case the claimant didn’t actually provide a fit note until 3 weeks after her claim started but it was backdated to 2 months before. Would the “first day” be the day it was handed in or the day it was dated from?

     
Elliot Kent
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Reg 28:

An award of universal credit is not to include the LCW or LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.

The relevant period is the period of three months beginning with […] the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.

Lets say your client’s AP is 15th to 14th and they start supplying evidence on 28th January.

The relevant period starts on 28th January. Three months has elapsed on 27th April - so that is when the relevant period ends.. That occurs within the 15th April to 14th May AP.

Reg 28(1) says that they won’t be paid until “the beginning of the AP that follows the AP in which the relevant period ends”.

Given that the relevant period elapsed within the 15th April to 14th May, the effect of 28(1) is that the LCWRA element starts from 15th May - so no LCWRA for the four months from 15/01 through 14/05.

There is nothing about “91 days” anywhere.

As to when the medical evidence takes effect from, it will normally be the date it is provided. However it would depend on the circumstances - e.g. if your client had said they were unfit for work upon claiming and were just late in providing the physical fit note, it might be arguable that the relevant period starts on the claim date. See ADM F5031 and the examples therein.

     
CHAC Adviser
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I suspect the Case Manager is confusing the rules for ESA (old and new style) with those for UC. Relevant period for ESA assessment phase is thirteen weeks which is ninety-one days. However as the regulations make clear for UC the relevant period is three months not a number of days or weeks. You would have thought that it would be fairly easy to overturn at MR (though I won’t hold my breath).

     
BC Welfare Rights
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Thanks both.

The two examples given at ADM F5031 seem completely contradictory to me. In the first one, Dom’s evidence is accepted on the basis of his phonecall which predates his fitnote by 2 weeks. But in the second example, Petra has to wait for more than 2 months after her fitnote takes effect for her relevant period to begin.

Why the discrepancy? Because Petra was in hospital recovering from emergency surgery and she did not report it until she got out?

     
Charles
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The relevant period starts on the day ‘evidence’ of LCW is first provided to DWP.
‘Evidence’ for this purpose includes self-certification for the first seven days of a period of LCW.
Dom therefore has provided evidence on the day he contacted the department saying he was unwell.
Petra first provided evidence when she sent in the hospital doctor’s statement.

It’s interesting you assume Dom provided his evidence by phone. The ADM doesn’t actually say how he contacted DWP.
Technically, the Regs only allow for self-certification to be provided “in writing, on a form approved for the purpose”.
On the other hand, new-style ESA should also require that, but the ADM explicitly allows a verbal declaration to count for new-style ESA.

On a separate point:
I haven’t actually seen this issue in practice, but I think the three month relevant period can be very unfair due to its interaction with UC’s assessment periods:
If a claim is made on 30/3/2019 including a declaration of LCW, the relevant period would end 29/6/2019, and LCWRA element could be included from 30/6/2019.
If the claim is made a day later (31/3/2019), the relevant period would end 30/6/2019, and LCWRA element would only be included from 31/7/2019 - a whole month later.

      [ Edited: 12 Mar 2019 at 05:00 am by Charles ]
BC Welfare Rights
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Looking again at the ADM it is not so much contradictory, it is consistent in that both examples give the date that the change of circs was reported as the start date, irrespective of when the actual change of circs occurred. But can this really be right? Is Petra really expected to get the fitnote to UC from her hospital bed whilst recovering from emergency surgery? Hmmm.

In my particular case the claimant was kicked off ESA for FTA a WCA and then claimed UC, so I’m pretty sure she would have already submitted the (3 month) fitnote to ESA previously. A slightly different argument to be made when I have checked that out I suppose.

Thanks for the help, invaluable as ever. And Charles, I hope that I am not responsible for you not sleeping at night given the timings of your posts.

     
Charles
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Nah, I was up anyway. I’m a bit of a night owl!