Mixed-Age couple, in receipt of AA. Is the work allowance payable from day one?

Hi,

I’m not sure of a calculation I was doing for a service-user: mixed-age couple - pension age partner in receipt of AA.
Pension age partner has to wait three assessment periods before LCWRA element is included. Do the couple - the younger partner works - qualify for a work allowance from the start of the claim?

Also, if I am reading the 2013 Regulations correctly, the younger partner can have a carer element added even if they earn more than £139 net per week as they are not claiming Carer’s Allowance?

Thanks,

Jim

I think the work allowance will only kick in from the fourth assessment period.  The work allowance is only awarded if they are responsible for children or (at least one of them) has a limited capability for work.  The limited capability for work decision will only become effective from the fourth assessment period and that is when the health allowance should be paid and the work allowance should start.

You have read the regulations correctly.  The £139 earnings rule does not apply to Universal Credit so she can declare herself to be a carer and the carer element should be added to the award.

Thanks Mick.

Jim

I’m not sure I agree. Whilst it is true that for a new claim, the LCWRA element only becomes payable from the fourth AIP, the older partner is treated as having LCWRA (and therefore LCW also) from day one of the UC award so surely the work allowance should also apply from the date of claim?

Not at work today so don’t have books to check for sure.

The question about when the work allowance is given in cases where there is a waiting period has been discussed a number of times on here.

Initially, there wasn’t any clarity, but in recent years it seems to have become settled that in all cases the work allowance is backdated to the AP in which the health condition was first reported or the start of the claim. This is even where the claimant is not simply treated as having LCW/LCWRA, but has to actually go through a WCA.

Regarding the legal basis for the above:
With the abolishment of the LCW element, and the consequential amendments removing mention of LCW from Reg 28, it would seem clear that for claimants with only LCW that the work allowance must be given immediately - as there would seem to be no basis for a delay.
Only for those claimants with LCWRA could there be an argument that the work allowance is only given after the waiting period (relying on UC etc (D&A) Regs, Reg 35(9)(a)). Even this is fairly dubious though!

Reg.40(5)

(5) Subject to paragraph (6), a claimant is to be treated as having limited capability for work and work-related activity if any of the circumstances set out in Schedule 9 applies.

SCHEDULE 9 Regulation 40(5)
Circumstances in which a claimant is to be treated as having limited capability for work and work-related activity

Disabled and over the age for state pension credit
5.  The claimant has reached the qualifying age for state pension credit and is entitled to attendance allowance, the care component of disability living allowance at the highest rate or the daily living component of personal independence payment at the enhanced rate [F1or the daily living component of adult disability payment at the enhanced rate in accordance with regulation 5(3) of the Disability Assistance for Working Age People (Scotland) Regulations 2022.

So that is absolutely clear that someone in the position of having an AA award is treated as having both LCW and LCWRA, no need to go near reg.28. Reg.22 says the work allowance applies if you have LCW. Which the older partner does, whether or not the LCWRA element is included (which of course is covered by reg.28).

Thanks, Paul.  Very happy to stand corrected.