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Effective date of LCWRA element if FIT notes are not continuous
My client claimed UC in August 2022, declared a health condition and provided a FIT note which expired in November. She has not provided any further FIT notes since then. She is due her WCA medical assessment this week and Jobcentre Plus has said: “I would advise ****** that she MUST provide a new Fit Note, as her current one expired on 24/11/2022. When the Work Capability Assessment takes place, the Decision Maker will only consider the Health Element from the date of the Work Capability Assessment if the Medical Evidence isn’t continuous”.
Would it be correct to not backdate the health element to the end of the relevant period if medical evidence hasn’t been continuous?
Period for which the F1… LCWRA element is not to be included
28.—(1) An award of universal credit is not to include the F2… 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 [F3monthly] 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 F4… 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.
(3) But where, in the circumstances referred to in paragraph (4), there has been a previous award of universal credit—(a)if the previous award included the F5… LCWRA element, paragraph (1) does not apply; and
(b)if the relevant period in relation to that award has begun but not ended, the relevant period ends on the date it would have ended in relation to the previous award.
(4) The circumstances are where—(a)immediately before the award commences, the previous award has ceased because the claimant ceased to be a member of a couple or became a member of a couple; or
(b)within the six months before the award commences, the previous award has ceased because the financial condition in section 5(1)(b) (or, if it was a joint claim, section 5(2)(b)) of the Act was not met.
(5) Paragraph (1) also does not apply if—(a)the claimant is terminally ill; or
(b)the claimant—
(i)is entitled to an employment and support allowance that includes the support component F6…, or
(ii)was so entitled on the day before the award of universal credit commenced and has ceased to be so entitled by virtue of section 1A of the Welfare Reform Act 2007 F7 (duration of contributory allowance).
F8(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(7) Where, by virtue of this regulation, the condition in section 5(1)(b) or 5(2)(b) of the Act is not met, the amount of the claimant’s income (or, in the case of joint claimants, their combined income) is to be treated during the relevant period as such that the amount payable is the prescribed minimum (see regulation 17)
On my reading of this the gap in sick notes (I hate the term “fit note”) is immaterial.
If they’re on PIP I’ve previously successfully argued that’s sufficient “evidence” as the med3 isn’t mandatory, just preferred evidence.
A backdated med3 might the pragmatic approach though. You’re firmly in “computer says no” territory here so feeding it what it needs might be the sensible fix.
While the WCA is being undertaken, fit notes (or some other form of proof) are the mechanism by which your client can be treated as having LCW. If there is no proof of LCW, I guess DWP has no other way of determining whether a claimant has limited capability for work or for work and work-related activity and without any other proof, it looks like DWP is saying that only the WCA can now establish LCW and therefore the client can only be deemed to have LCW from the date of the assessment (as it possible that the client is fit and well pending the assessment).
Edit - though Dan’s view above sounds reasonable
Period for which the F1… LCWRA element is not to be included
28.—(1) An award of universal credit is not to include the F2… 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 [F3monthly] 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 F4… 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.
(3) But where, in the circumstances referred to in paragraph (4), there has been a previous award of universal credit—(a)if the previous award included the F5… LCWRA element, paragraph (1) does not apply; and
(b)if the relevant period in relation to that award has begun but not ended, the relevant period ends on the date it would have ended in relation to the previous award.
(4) The circumstances are where—(a)immediately before the award commences, the previous award has ceased because the claimant ceased to be a member of a couple or became a member of a couple; or
(b)within the six months before the award commences, the previous award has ceased because the financial condition in section 5(1)(b) (or, if it was a joint claim, section 5(2)(b)) of the Act was not met.
(5) Paragraph (1) also does not apply if—(a)the claimant is terminally ill; or
(b)the claimant—
(i)is entitled to an employment and support allowance that includes the support component F6…, or
(ii)was so entitled on the day before the award of universal credit commenced and has ceased to be so entitled by virtue of section 1A of the Welfare Reform Act 2007 F7 (duration of contributory allowance).
F8(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(7) Where, by virtue of this regulation, the condition in section 5(1)(b) or 5(2)(b) of the Act is not met, the amount of the claimant’s income (or, in the case of joint claimants, their combined income) is to be treated during the relevant period as such that the amount payable is the prescribed minimum (see regulation 17)
On my reading of this the gap in sick notes (I hate the term “fit note”) is immaterial.
If they’re on PIP I’ve previously successfully argued that’s sufficient “evidence” as the med3 isn’t mandatory, just preferred evidence.
A backdated med3 might the pragmatic approach though. You’re firmly in “computer says no” territory here so feeding it what it needs might be the sensible fix.
Dan’s approach with a back-dated note has been accepted when I’ve contacted the wca team. It seems to “fill in the gaps” on their side.
Elaine
While the WCA is being undertaken, fit notes (or some other form of proof) are the mechanism by which your client can be treated as having LCW. If there is no proof of LCW, I guess DWP has no other way of determining whether a claimant has limited capability for work or for work and work-related activity and without any other proof, it looks like DWP is saying that only the WCA can now establish LCW and therefore the client can only be deemed to have LCW from the date of the assessment (as it possible that the client is fit and well pending the assessment).
Edit - though Dan’s view above sounds reasonable
It was Elliot pulled me up on this so credit for his wisdom. There’s no mechanism to treat someone as LCW in UC; the med3 is just there to try and persuade the WC to exercise some discretion and, as I’ve seen in the sanctions cases I’ve seen recently; particularly with Way to Work and similar programmes, sometimes that is less successful that we might desire.
With Govt sliding ever closer to mandating UC claimants to look for work (yep I’ve seen it) we need to be alive to possible Equality Act claims again to police this.
Many thanks for that, Dan
I think the DWP do require some evidence of LCW throughout the period. From the Social Security (Medical Evidence) Regulations 1976:
Evidence of incapacity for work, limited capability for work and confinement
2.—(1) Subject to regulation 5 and paragraph (1A) below, where a person claims to be entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay) and entitlement to that benefit, allowance or advantage depends on that person being incapable of work or having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the personal capability assessment or the limited capability for work assessment they shall provide evidence of such incapacity or limited capability by means of a statement given by a healthcare professional in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations.
I think the DWP do require some evidence of LCW throughout the period. From the Social Security (Medical Evidence) Regulations 1976:
Evidence of incapacity for work, limited capability for work and confinement
2.—(1) Subject to regulation 5 and paragraph (1A) below, where a person claims to be entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay) and entitlement to that benefit, allowance or advantage depends on that person being incapable of work or having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the personal capability assessment or the limited capability for work assessment they shall provide evidence of such incapacity or limited capability by means of a statement given by a healthcare professional in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations.
Surely this is tempered by 2 (1A) of the same regs which would allow other evidence of LCW to be provided where it is unreasonable to provide a fit note.
If DWP have at a later date decided client has LCWRA, they clearly have sufficient evidence on hand already. I guess whether it is unreasonable for claimant to not have provided an actual fit note is a consideration but can’t see that is a high bar to pass (I couldn’t get a GP appt/poor MH/UC didn’t ask me for one etc.)
If DWP have at a later date decided client has LCWRA, they clearly have sufficient evidence on hand already. I guess whether it is unreasonable for claimant to not have provided an actual fit note is a consideration but can’t see that is a high bar to pass (I couldn’t get a GP appt/poor MH/UC didn’t ask me for one etc.)
Are you accusing the Secretary of State of pragmatism Tom? Optimism is a rare trait in this day and age.
I think the DWP do require some evidence of LCW throughout the period. From the Social Security (Medical Evidence) Regulations 1976:
Evidence of incapacity for work, limited capability for work and confinement
2.—(1) Subject to regulation 5 and paragraph (1A) below, where a person claims to be entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay) and entitlement to that benefit, allowance or advantage depends on that person being incapable of work or having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the personal capability assessment or the limited capability for work assessment they shall provide evidence of such incapacity or limited capability by means of a statement given by a healthcare professional in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations.
Surely this is tempered by 2 (1A) of the same regs which would allow other evidence of LCW to be provided where it is unreasonable to provide a fit note.If DWP have at a later date decided client has LCWRA, they clearly have sufficient evidence on hand already. I guess whether it is unreasonable for claimant to not have provided an actual fit note is a consideration but can’t see that is a high bar to pass (I couldn’t get a GP appt/poor MH/UC didn’t ask me for one etc.)
Yes I agree and we have a corporate appointee client who, once we’d seen her journal, had clearly struggled with her UC claim and had only intermittently provided fit notes. She had provided one at the beginning of the claim and they referred her for a WCA when we got involved and provided a backdated and forward dated fit note (but could not get them to cover all the gaps). She was assessed as LCWRA and they paid from the start of the fourth AP despite the gaps. They didn’t refer in the decision notice to any process by which they had decided the evidence was continuous but did mention something about her having a good cause for not providing fit notes continuously - which afaik has no basis in law (willing to be proved wrong though).
Just to add we’ve just had a MR back today where we argued as above and it was swiftly accepted (MR lodged Friday).