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

LCWRA over SRP age and waiting period

CA Adviser
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Hello
Client reached SRP age on 9/6/21,part of a mixed age couple on UC (recent claim after husband lost his job). She is in receipt of ER DL so can be treated as having LCWRA. The three AP waiting period needs to be served. Their AP runs from 22nd of one month to the 21st of the next. When will the LCWRA element be included in their maximum amount?
Many thanks

unhindered by talent
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The LCWRA Element should be included in their UC assessment from the beginning of the Monthly
Assessment Period following the end of the 3 month ‘relevant period’.

Ianb
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unhindered by talent - 20 June 2021 02:36 PM

The LCWRA Element should be included in their UC assessment from the beginning of the Monthly Assessment Period following the end of the 3 month ‘relevant period’.

The question is what is the relevant period. We know that normally it is the three full APs after a health condition is reported. Will the date they reach pension age be the date they are treated as reporting the health condition, in which case that AP is not part of the relevant period, or are they treated as being of pension age for the whole AP in which case, arguably, that AP could be part of the relevant period. When i saw this post earlier in the week I couldn’t find a regulation to clarify this.

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Yes, I am stuck too. Client had been submitting fit notes also from the start of the UC claim, no WCA yet.

Paul_Treloar_AgeUK
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Isn’t it the case that it’s simply the first three AIP’s that pass, regardless of when they reached pension age?

Reg.28 of UC Regs holds:

Period for which the LCWRA element is not to be included
28.—(1) An award of universal credit is not to include the LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.

(2) The relevant period is the period of three months beginning with—

(a)if regulation 41(2) applies (claimant with monthly earnings equal to or above the relevant threshold) the date on which the award of universal credit commences or, if later, the date on which the claimant applies for the LCWRA element to be included in the award; or
(b)in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.

Your client has been submitting medical certificates from the start of the UC award therefore reg.28(2)(b) dictates that the LCWRA element can only be included after the relevant period? If the DWP want to dispute whether the client has LCWRA for the period between the start of the UC award an d reaching SPA, then they’d need to somehow carry out a retrospective WCA.

Ianb
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If Fit Notes have been provided since the start of the claim that does change the consideration.
I am still not clear when the relevant period would start if we were only taking into account the claimant becoming pension age. I think it likely that the date they become pension age would be treated as the date they provided evidence of of having LCW, but I’m not sure.

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Is anyone coming across cases like this?:
1. couple moving to UC as a result of becoming a MAC;
2. qualifying for a transitional SDP element;
3. not having claimed UC prior to turning pension age so unable to benefit from transitional provisions and unable to have the LCWRA element included in the award immediately;
4. having the LCWRA element added after the relevant period which erodes the TSDPE.

Paul_Treloar_AgeUK
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Ianb - 21 June 2021 03:31 PM

If Fit Notes have been provided since the start of the claim that does change the consideration.
I am still not clear when the relevant period would start if we were only taking into account the claimant becoming pension age. I think it likely that the date they become pension age would be treated as the date they provided evidence of of having LCW, but I’m not sure.

Why? I think reg.28 is crystal clear here.

28.—(1) An award of universal credit is not to include the LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.

(2) The relevant period is the period of three months beginning with—

(b)in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.

The client has provided fit notes since the start of the UC claim, the DWP should have taken steps to assess client, but in the meantime, they’ve become passported due to the PIP award as being treated as having LCWRA.

Ianb
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Paul_Treloar_AgeUK - 21 June 2021 04:03 PM

Why? I think reg.28 is crystal clear here.

I agree that as Fit Notes were provided it is clear.

The original post did not include the information about the Fit Notes so what was being considered was the situation where somebody on enhanced rate Daily Living PIP, but who has not provided Fit Notes to UC,  reaches pension age and therefore entitled to be automatically treated as having LCWRA.

Sarah-B
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Owen_Stevens - 21 June 2021 03:40 PM

Is anyone coming across cases like this?:
1. couple moving to UC as a result of becoming a MAC;
2. qualifying for a transitional SDP element;
3. not having claimed UC prior to turning pension age so unable to benefit from transitional provisions and unable to have the LCWRA element included in the award immediately;
4. having the LCWRA element added after the relevant period which erodes the TSDPE.

That would be dreadful Owen.

I advised a couple last week where they had previously been on ESA SG which ended on one of them reaching pension age and becoming a MAC, and I interpreted the same as Paul and others above - there is a 3 month period to serve because there was no entitlement to ESA on the first day of the UC claim. 

There wasn’t an T-SDP though as I recall. That seems super unfair.

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Sarah-B - 21 June 2021 07:30 PM

That would be dreadful Owen.

I advised a couple last week where they had previously been on ESA SG which ended on one of them reaching pension age and becoming a MAC, and I interpreted the same as Paul and others above - there is a 3 month period to serve because there was no entitlement to ESA on the first day of the UC claim. 

There wasn’t an T-SDP though as I recall. That seems super unfair.

I know I’m starting to sound like a stuck record on this issue but it’s one of the worst changes to social security that I can remember.

There’s absolutely no consistency in outcomes for people in very similar situations, the financial losses, both actual and notional, are significant and in some cases, will last for quite a few years, and there’s also the basic unfairness of people being cast asunder simply because they reach SPA and get badly advised by a local authority or they don’t understand what they need to do before reaching SPA.

Ianb
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Paul_Treloar_AgeUK - 22 June 2021 09:04 AM

I know I’m starting to sound like a stuck record on this issue but it’s one of the worst changes to social security that I can remember.

There’s absolutely no consistency in outcomes for people in very similar situations, ..

Completely agree. It is clearly wrong that outcomes should be so different depending on whether claimant has knowledge of how the rules work or not. Could be easily remedied by having ‘claimed UC within one (or possibly three) months of ESA ending’ provision for LCW/LCWRA in these circumstances.

[ Edited: 22 Jun 2021 at 06:56 pm by Ianb ]