Treated as having LCWRA and having a WCA

Don’t think there’s a question in this – just thinking aloud.

I have noticed a discrepancy in the way documents discuss the processing of claimants who are entitled to be treated as having LCWRA.

UC Regulations 2013 Regulation 40 (5) provides that “A claimant is to be treated as having LCWRA if any of the circumstances set out in Schedule 9 applies”.
Claimants who fall within the scope of this Schedule appear not to be required to have a WCA, although interpreting Schedule 9 still involves some discretion and in the case of cancer patients having radiotherapy/chemotherapy it expressly provides that the SoS has to be satisfied that the claimant should be treated as having LCWRA.

A distinction is made in ADM, for example
“G1004 Claimants who are treated as having LCW or LCWRA do not have to undergo the WCA.”
“G3002 A claimant has LCWRA where
1. it is determined that they have LCWRA on the basis of the WCA, ... OR
2. they are treated as having LCWRA ..”
and
“G3005 Certain claimants can be treated as having LCWRA and do not have to undergo the WCA.”

However the ADM goes on to confuse matters by describing claimants undergoing the relevant cancer treatment being referred for a WCA in the examples given in para G3017.

The House of Commons deposited papers refers to people who are automatically treated as having LCWRA being referred for a WCA

See http://data.parliament.uk/DepositedPapers/Files/DEP2019-0980/132._Treated_as_having_limited_capability_for_work.pdf#page2

“Treated as having limited capability for work and work related activity
A claimant must be treated as having limited capability for work and work related activity (LCWRA) if they provide sufficient medical evidence of having one of the conditions or are receiving one of the treatments listed below:…..
Except for terminally ill claimants with a DS1500 all claimants having one of the conditions or treatments listed above will be referred for a Work Capability Assessment from day 1.”

Curiously, this paper, misleadingly, doesn’t include the discretionary aspects of Schedule 9 and simply states that the relevant claimants must be treated as having LCWRA.

Also http://data.parliament.uk/DepositedPapers/Files/DEP2019-0980/65._Immediate_WCA_referrals_v9.0.pdf
“Immediate WCA referrals
A Work Capability Assessment referral must be made immediately if a claimant reports:
• circumstances that mean they can be treated as having Limited Capability for 
Work
• circumstances that mean they can be treated as having Limited Capability for 
Work and Work Related Activity – including terminal illness “

We know that in practice DWP choose to process claimants who fall into this category by sending out a UC50 and then having it reviewed by a health professional so it probably has no practical significance whether or not they describe it as a WCA referral or not but to my mind this kind of inconsistent narrative is indicative of muddled thinking!

I’ve got a related query, opinions welcomed.

My client has lymphoma and is currently having chemotherapy as an inpatient. I can see that if she was special rules then LCWRA would be added straight away, but this doesn’t appear to apply to cancer treatment generally, as these claimants are covered by Reg 28, and therefore have to serve the assessment phase.

My client’s chemo started on 12/08/20 and she was quite unwell before then. I’ve just helped her to submit a sicknote which is dated 29/09/20 - 05/12/20. She was only referred to us last week and so I’m not sure why there haven’t been sicknotes provided to UC before this. I’m thinking this means that she will have to wait for the next 3 APs to get the LWCRA included, as it’s this AP which has “the first day on which the claimant provides evidence of their having limited capability”.

Do you think there is any scope for asking UC to backdate the start of the assessment phase (the ‘relevant period’ under Reg 28)) if we can get evidence that her cancer treatment started earlier?

Or, even further back if she can get a sicknote with her diagnosis backdated? As she would be likely to start chemo within 6 months…

Regardless of when the Fit Note was first provided has your client previously reported her health condition on her UC journal or as part of the claim? Has she provided any medical letters? Medical evidence doesn’t have to be a Fit Note. If any of the above apply it is arguable that DWP should have started the relevant period.

If she has never reported the condition then I see little prospect of getting the relevant period backdated given that the regulations refer to providing evidence rather than when a heath condition started.