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Joint claimants and relation between Carer and LCWRA elements - anomaly?
Looking at draft UC regs 27 and 29
Two joint claimants - one has LCfWWRA and one LCfW : they get one LCWRA element.
Same couple but the claimant with LCfW is now a carer : they get one LCWRA element plus one carer element.
Same couple but the claimant with LCfWWRA is the carer instead (and not the one with LCfW) : it looks like they’ll get one LCWRA element only ( draft UC reg 29(4) ) - that doesn’t seem right.
More broadly, reg 29(4) assumes you can attribute an element to specific claimant but reg 27 doesn’t provide a mechanism for doing that where joint claimants both have LCW or both have LCWRA.
It’s always been a policy intention of UC that it will no longer be possible for a claimant to be awarded carer element as well as LCW or LCWRA - see http://www.dwp.gov.uk/docs/ucpbn-7-carers.pdf. My understanding is that, for joint claimants, where both have LCW, one would have to give up their LCW status in order to claim as a carer.
Will transitional payments cover this for claimants transferring to UC?
I am so glad this new Universal Credit will be a much simpler system :)
It’s always been a policy intention of UC that it will no longer be possible for a claimant to be awarded carer element as well as LCW or LCWRA - see http://www.dwp.gov.uk/docs/ucpbn-7-carers.pdf. My understanding is that, for joint claimants, where both have LCW, one would have to give up their LCW status in order to claim as a carer.
Will transitional payments cover this for claimants transferring to UC?
Thanks, Ruth - exactly - since PBN7 we’ve known that single claimants will only get one of the three elements (the highest of LCW,Carer,LCWRA); and also that for joint claimants a LCW can be awarded for one joint claimant and Carer element for the other.)
In terms of the regs, I’m still a bit worried about the joint claimants - just thinking it through…
If both joint claimants C1 and C2 have LCW then one LCW element only is included (reg 27)
If one of them’s a carer then applying reg 29 will result in a carer element (either in addition to or instead of the LCW.)
In order to test whether that LCW element is replaced by the carer element Reg 29(4) requires you to know : in respect which claimant has the LCW been awarded at reg 27?
There are 4 logical possibilities:-
(0) It’s in respect of *neither* of them - so a carer element and a LCW can both be paid together (regardless of who’s the carer) (!? seems unlikely, parts of 29(4) wouldn’t make sense)
(1) It’s in respect of C1 so C2 could get a carer element on top of C1’s LCW
(2) It’s in respect of C2 so C1 could get a carer element on top of C2’ LCW
(3) It’s in respect of *both* C1 and C2 (even though there’s just one element??) : so one carer element only applies (and no LCW)
My initial concern was that the regs are ambiguous because they don’t tell you how to distinguish between (1) and (2). [which is important: if only one of C1,C2 is a carer - you’d want a DM to make the ‘right’ choice about whose LCW it is]
I hadn’t thought about (0) an (3) as possibilities.
I think you could be suggesting that the correct interpretation is (3) - and therefore the carer would have to lose their LCW status to allow the carer element plus the other’s LCW element to be paid together - is that right?
Re transitional additions - I think that the PBNs imply that losses due to loss of (multiple) premiums/components will be picked up (at least initialy) by the TA - but it’s a bit ominous that there still aren’t even draft regs on how TA will work.
I agree, its not clear at all. It looks as if a person with LCWRA cannot be counted as a carer.
This suggests that:
- a couple that both have LCWRA will get LCWRA element.
- a couple where one has LCWRA and is a carer, and the other has LCW but is not a carer, will get LCWRA element,
- a couple where one has LCWRA and the other has LCW and is a carer will get LCWRA plus carer element.
- or where both have LCW and one is a carer, they will get LCW element plus Carer element.
That might make sense if the policy intention is that someone with LCWRA must be so disabled they are deemed unable to undertake caring responsibilities, but it does undermine the concept of increasing the award for those with the greatest need.
Crikey - have been staring at Reg 29 in a semi-darkened room in the hope of inspiration. Seems clear that you can’t get a carer element if you are super-sick and in the support group – in which case the LCWRA element is instead imposed. However, if you have LCW status and would also qualify as a carer for Carer Element, the latter is imposed without choice [Reg(29)(4)(b)]. Is that right? Just as well that the Carer Element pays a bit more.
To pick up Jon’s earlier point, I am not sure any of the above would require the loss of a ‘LCW status’, as it were. Isn’t Reg 29 rather about what element is or is not included in the award, although maybe thats the same thing!
I am not entirely sure about the value/intention of the bracketed sentence in Reg 29(4)(a). Is that saying that in joint claim cases, the LCWRA element must be included instead of others, unless it already has been via the partner’s condition? It does not seem to stop one partner triggering a LCWRA element, and the other partner a Carer Element. Is that right?
Steve
Seems clear that you can’t get a carer element if you are super-sick and in the support group – in which case the LCWRA element is instead imposed. However, if you have LCW status and would also qualify as a carer for Carer Element, the latter is imposed without choice [Reg(29)(4)(b)]. Is that right?
Yes, and yes.
To pick up Jon’s earlier point, I am not sure any of the above would require the loss of a ‘LCW status’, as it were. Isn’t Reg 29 rather about what element is or is not included in the award, although maybe thats the same thing!
I was really just running with Ruth’s suggestion - if interpretation (3) in my second example was true then the carer not having LWC would be the only way for them to get the carer element. That would resolve the ambiguity but I don’t think it’s right.
I actually think that options (1) and (2) are both more natural readings either than (0) or (3) : the problem is the regs give you no way of choosing between (1) and (2) which means that the situation is underdetermined.
Where Ruth says: “or where both have LCW and one is a carer, they will get LCW element plus Carer element.” I think thats exactly right (and probably the intention) but I also think you need invoke a ‘benign DM’ who always attributes the LCW element to the non-caring partner; the regs don’t tell you which partner’s LCW it is that’s included at reg 27.
I am not entirely sure about the value/intention of the bracketed sentence in Reg 29(4)(a). Is that saying that in joint claim cases, the LCWRA element must be included instead of others, unless it already has been via the partner’s condition? It does not seem to stop one partner triggering a LCWRA element, and the other partner a Carer Element. Is that right?
I think the parenthetical part in 29(4)(a) is just there to prevent 2 x LCWRA being awared where they both have LCWRA and one is a carer (which implies it’s at least possible to attribute the LCWRA at 27 to the non carer).
[ Edited: 8 Jan 2013 at 08:38 pm by Jon Blackwell ]Thanks Jon.
Steve
Further to earlier discussion, it would therefore appear that a couple who are both super sick will only get one LCWRA element (irrespective of either or both of any parallel carer roles they may also have), whereas a couple where one is super sick and the other is a carer (where or not the carer also has LCW status) would get LCWRA element and carer element. That does not seem right, if rightness is appropriate in relation to this subject.
Can a partner in such circumstances withdraw their LCWRA status, or would it be simpler to ‘under argue’ their LCWRA status, in order to capture the carer element on top of the LCWRA element?
Steve
Further to earlier discussion, it would therefore appear that a couple who are both super sick will only get one LCWRA element (irrespective of either or both of any parallel carer roles they may also have), whereas a couple where one is super sick and the other is a carer (where or not the carer also has LCW status) would get LCWRA element and carer element. That does not seem right, if rightness is appropriate in relation to this subject.
Can a partner in such circumstances withdraw their LCWRA status, or would it be simpler to ‘under argue’ their LCWRA status, in order to capture the carer element on top of the LCWRA element?
Steve
Thanks for this Steve, this outlines my query perfectly. I would be interested to know if anyone has retrieved a straightforward answer to this, or has dealt with a joint claim in this situation?
More broadly, reg 29(4) assumes you can attribute an element to specific claimant but reg 27 doesn’t provide a mechanism for doing that where joint claimants both have LCW or both have LCWRA.
That’s certainly one not unreasonable interpretation of Reg 29(4) Jon. And agree about the omission of any mechanism in Reg 27 for preferring one claimant over another if that is indeed the way Reg 29(4) should be read.
27(4) In the case of joint claimants, where each of them has limited capability for work or for work and work-related activity, the award is only to include one element and that is the LCWRA element if one [or more] of them has limited capability for work and work-related activity, but otherwise it is the LCW element
Just looking at Reg 27(4) it seems the words “or more” in bold above must be read into it, otherwise if both joint claimants had LCWRA they’d be awarded the LCW element rather than the LCWRA one. And that would simply be absurd.
Re the 29(4) problem I think there is another interpretation to the one you offer which addresses the broader problem identified in the OP. I’ve set out below what I think are the relevant paras of Reg 29:
(2) In the case of joint claimants, an award is to include the carer element for both joint claimants if they both qualify for it, but only if they are not caring for the same severely disabled person.
(4) Where an amount would, apart from this paragraph, be included in an award in relation to a claimant by virtue of paragraphs (1) to (3), and the claimant has limited capability for work or for work and work-related activity, only one out of the carer element, the LCW element and the LCWRA element may be included in respect of the
claimant and that element is–(a) if the claimant has limited capability for work and work-related activity (and, in the case of joint claimants, the LCWRA element has not been included in respect of the other claimant), the LCWRA element; or
(b) in any other case, the carer element.
I think the reference in para (4)(a) to “joint claimants” is to the joint claimants mentioned in para (2). With the result that, whilst (4)(a) can obviously apply to both single and joint claimants, its words in parenthesis can only ever apply when joint claimants not only both have LCWRA but are, at the same time, both carers (not necessarily for each other). Para (4)(a) then assumes that each of the joint claimants will be processed by (4)(a) separately so that one of them goes through first. So C1 and C2 both have LCWRA and are both carers. C1 goes through (4)(a) first and is asked “has the LCWRA element been included for the other claimant?”. And the answer is “no” because s/he hasn’t been through here yet - C1’s the first to go through. So C1 is awarded the LCWRA. C2 then goes through (4)(a) and when s/he is asked “has the LCWRA element been included for the other claimant, ie C1, the answer is, of course, yes. So C2 gets the carer element.
I appreciate the above interpretation doesn’t resolve the unfairness identified in your OP, ie where one of the joint claimants has both LCWRA and is a carer whilst the other joint claimant is neither, in which case only a LCWRA element is awarded rather than the LCWRA and carer element.
I raised this query directly with the DWP (and various other experts!)
It appears the experts and the DWP concur on this point. The DWP’s desk aid sets out a number of example scenarios.
In one scenario where both claimants have LCWRA and both are carers, the following is provided: One claimant is entitled to Carer and the other claimant is entitled to LCWRA. Generally, the claimant who was awarded LCWRA first will remain on LCWRA and the other claimant will be awarded Carer.
My particular scenario of both having LCWRA and only one being carer is not listed. However, I’m now confident that where two claimants have LCWRA and one or both are carers, the LCWRA and carer elements are both payable.
Thank you all for your input!