Referral for a WCA where the other member of a couple has earnings exceeding the threshold

UC Reg 41 (2) and (3) prevent a WCA taking place if “the claimant has monthly earnings” exceeding a threshold equivalent to 16 x min wage - unless “the claimant” is entitled to PIP, etc.. How does this apply in a couple where the incapacitated person doesn’t have any earnings (and does not get PIP) but has a partner whose earnings exceed the threshold?

In the office we’ve been debating whether this earnings threshold is applied to both members of a couple, or only to the person in the couple requesting the WCA. As the Regs say “a claimant” has earnings, we’ve come down on the side of thinking that this means that the earnings threshold applies to either of the claimants in the couple and both of their cumulative earnings considered together.

However - the Reg could have been written to say - ‘and in the case of joint claimants, their combined monthly earnings’ but it hasn’t been specified like that. So is there any scope for an interpretation where the earnings threshold only applies to the incapacitated member in a couple, and not their joint income?

Sorry, so you are saying that a person would be excluded from having a WCA by reference to their partner’s earnings?

I think this is a definite ‘Friday afternoon’ take, I’m afraid. The regs in referring to a ‘claimant’ are fairly obviously referring only to the individual who is proposing to undergo the WCA. It’s perfectly standard within the overall scheme of the regulations to refer to an individual who forms part of a couple as being ‘a claimant’ in considering their circumstances individually and this is in line with the definition of ‘claimant’ in s.40 WRA. Where necessary the regulations make specific reference to the treatment of ‘a claimant’ who is also a ‘member of a couple’ (see as random examples, regs 27 and 62).

Thanks Elliott those are fair points - good to have my Friday brain sense checked!
It turns out the sick client had been putting in sick notes for a year and then UC told him he didn’t need to, but also didn’t refer him for a WCA.
So further investigating is needed to find out why UC didn’t refer him for a WCA, and then take this forward…