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LCW/LCWRA and Work Allowance effective date
Basic question I really should know the answer to.
I know, in general, there is a three month waiting period for payment of LCWRA element but when a claimant applies for UC with evidence of illness and is subsequently found to have LCW or LCWRA from what date does the status apply thereby triggering entitlement to Work Allowance? Similarly if they are already on UC and then notify illness from when does LCW status apply (if so classified following WCA).
The waiting period starts when they first notify of their disability/long term health condition. This is usually but not necessarily via the journal and they will be prompted to provide a fit note from the GP.
The DWP will often say “no fit note, no WCA” however this is in practice not in regulation where it’s not stipulated. We have managed to get WCA put through without the need for a fit note via the VCL’s at our local JC (cases such as learning disabled).
If it’s a brand new claim the first assessment period will count but if it’s part way through only the first full assessment period counts (I think).
WCA kicks in once the fit note is continuous for 29 days but again, this doesn’t always happen so we suggest asking for one via the journal or direct via the VCL in some cases.
Thanks Catblack but that’s not the issue I am seeking clarification on.
I understand the process for WCA (or obtaining automatic entitlement to LCWRA where no WCA applies) and how the waiting period works and applies in respect of putting the LCWRA element into payment. What I am not clear about is whether the waiting period also applies to being treated as having LCW/LCWRA, which would in turn trigger the Work Allowance.
Thanks Catblack but that’s not the issue I am seeking clarification on.
I understand the process for WCA (or obtaining automatic entitlement to LCWRA where no WCA applies) and how the waiting period works and applies in respect of putting the LCWRA element into payment. What I am not clear about is whether the waiting period also applies to being treated as having LCW/LCWRA, which would in turn trigger the Work Allowance.
The work allowance will be backdated to start of claim (if the waiting period started on the day of claim) or otherwise to the first full assessment period following declaration of ill health. It’s only the payment of the LCWRA element that is subject to the waiting period.
As the WCA process takes several months, following the LCW/LCWRA added to claim, the previous periods then have to be recalculated to include the work allowance and then the underpayment paid to the client. I’ve always prompted for this on the journal (and it has been done) - I don’t know if it would be processed anyway without a prompt.
In a similar way if a WCA is carried out very promptly and the cl is given LCWRA that status applies from that point, so no more work related activities, even if they are still in the waiting period for the actual element to be paid.
Thankyou, MareeH. That is clear and what I had only recently thought might be the case - for some reason haD not occurred to me before. Are you aware of any guidance that makes this clear? Before starting this thread I had a quick look at Advice to Decision Makers but failed to find anything.
I missed this thread a couple of weeks ago. This is something which has troubled me a lot in the past.
I’ve not found any guidance on this point. In fact, the only thing I’ve ever seen was in a CPAG article which is not online any more. It can still be read here.
It says:
The law is not very clear on whether you can then also be regarded as having limited capability for work in the period whilst you were waiting for the WCA to be decided. The intention seems to be that your universal credit award is ‘superseded’ and you are regarded as having had limited capability for work only from the time when you would have been able to have a work capability element included. This usually means from three months after you first notified being ill - see When is a work capability element included? above. The relevant rule for this is at regulation 35(9)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance (Decisions and Appeals) Regulations 2013.
The interesting thing is that if CPAG are correct, then when the LCW element was abolished, reg 35(9)(a) won’t apply, and reg 35(9)(b) should apply instead. If so, claimants assessed as having LCW would have the work allowance from the start.
The work allowance will be backdated to start of claim (if the waiting period started on the day of claim) or otherwise to the first full assessment period following declaration of ill health. It’s only the payment of the LCWRA element that is subject to the waiting period.
As the WCA process takes several months, following the LCW/LCWRA added to claim, the previous periods then have to be recalculated to include the work allowance and then the underpayment paid to the client. I’ve always prompted for this on the journal (and it has been done) - I don’t know if it would be processed anyway without a prompt.
This is really interesting. I would very much like to know if this is done without any prompting too.
In any event, it doesn’t make sense to me to include it only from the first full assessment period following declaration of ill health. Surely it should be included from the start of the assessment period in which the declaration is made?
Charles, if you haven’t found any guidance on this then I’m not surprised I haven’t!
Ian and Charles did you get any further with the above?
Ian and Charles did you get any further with the above?
Unfortunately not.
When I asked our partnership manager about it I was advised that the Work Allowance would apply from the date a determination of LCW/LCWRA was made. This would therefore (hopefully) be before the end of the relevant period but not from the start of the claim. I am not satisfied that the reply is correct which is why I really wanted to find guidance on the issue - but I haven’t.
I agree with Charles that logically any change should apply from the start of the assessment period in which the change occurs because that’s a basic principle of UC - except that it isn’t the way payment of the LCWRA element works. Payment only starts in the first full AP after the relevant period ends.
Because of my work most of my clients are entitled to automatically be treated as LCWRA and do appear to get a Work Allowance from the start of the claim. However because DWP insist on having health questionnaire completed and sent to health assessor in such cases (even though claimant is not required to have a WCA) there have been delays during COVID-19.
Ian and Charles did you get any further with the above?
Unfortunately not.
When I asked our partnership manager about it I was advised that the Work Allowance would apply from the date a determination of LCW/LCWRA was made. This would therefore (hopefully) be before the end of the relevant period but not from the start of the claim. I am not satisfied that the reply is correct which is why I really wanted to find guidance on the issue - but I haven’t.
I agree with Charles that logically any change should apply from the start of the assessment period in which the change occurs because that’s a basic principle of UC - except that it isn’t the way payment of the LCWRA element works. Payment only starts in the first full AP after the relevant period ends.
Because of my work most of my clients are entitled to automatically be treated as LCWRA and do appear to get a Work Allowance from the start of the claim. However because DWP insist on having health questionnaire completed and sent to health assessor in such cases (even though claimant is not required to have a WCA) there have been delays during COVID-19.
Thanks!
Here’s the two replies to a FOI wotsit on the above.
https://www.whatdotheyknow.com/request/universal_credit_work_allowance#incoming-1624712
Here’s the two replies to a FOI wotsit on the above.
https://www.whatdotheyknow.com/request/universal_credit_work_allowance#incoming-1624712
Thanks Andy.
Unless I’m missing something that still doesn’t seem very clear. It would help my brain if they could give a simple answer to a simple question!
I am reading it that the WA (if applicable) applies from the start of the AP in which the WCA decision is made. I assume however in the case where a WCA has taken longer than 3 months the WA would be backdated to the start of the AP following the relevant period in line with the lCWRA element (if payable) - but they haven’t said that.
[ Edited: 21 Aug 2020 at 04:54 pm by Ianb ]Here’s the two replies to a FOI wotsit on the above.
https://www.whatdotheyknow.com/request/universal_credit_work_allowance#incoming-1624712
Thanks Andy.
Unless I’m missing something that still doesn’t seem very clear. It would help my brain if they could give a simple answer to a simple question!
I am reading it that the WA (if applicable) applies from the start of the AP in which the WCA decision is made. I assume however in the case where a WCA has taken longer than 3 months the WA would be backdated to the start of the AP following the relevant period in line with the lCWRA element (if payable) - but they haven’t said that.
‘Unless I’m missing something that still doesn’t seem very clear. It would help my brain if they could give a simple answer to a simple question!’
FOI’s responses do belong at times to a strange twilight World!!!!!!!!!!!
FOI’s responses do belong at times to a strange twilight World!!!!!!!!!!!
Indeed
I have had a couple of MRs in the last six months where LCWRA has not been backdated but overturned on MR fortunately. I have put this down to poor training at UC Service Centres. Now I have an appeal where Clt originally awarded LCW on UC claim in 2019 (not challenged) then “standard review” initiated in February 2020 followed by UC50 where new diagnosis of BPD noted as well as the original 2019 Fit Note conditions of Anxiety, Paranoia and Depression. LCWRA then awarded in August 2021 but not backdated.
To me this is a straightforward supersession covered by para 29 of Schedule 1 Part 3 of D and A regs I.e. backdating applies because the decision is advantageous to the claimant.
Am I missing something or are DWP trying it on?
The DM needs to identify the ground of supersession which in practice will either be a change of circumstances (reg 23 D&A) or the special re-assessment ground (reg 26(1)(a) D&A).
If reg 26 is used, the effective date of the decision is always the date of decision itself. Schedule 1 is irrelevant.
If reg 23 is used, then the effective date is determined by reference to schedule 1.
I am not convinced that it is correct to say that the change of circumstances would take effect under para 29. I do not think that the re-assessment process can really be described as action with a view to supersession. It is a neutral process which is just designed to identify whether or not anything has happened to justify a change in award.
However, it certainly is possible to argue that the effective date of the decision ought to be either the date on which the change occurred or the date on which the change was reported in line with para 20 & 21 Sch 1 and reg 31.
This is a recurring issue which seems to have bled over from PIP. PIP DMs almost exclusively use reg 26 as the supersession ground and it seems that UC WCA DMs have borrowed that trick. ESA DMs tended to backdate the award as appropriate.