DWP delay in assessing a claimant's capability for work

Use this template if all the following apply

• Your client receives UC
• Your client has a disability or health condition which means they will be found to have limited capability for work-related activity (LCWRA) once assessed
• It has been more than 29 days since your client claimed UC and/or reported that they have a health condition which affects their ability to work
• Your client has been submitting fit notes or other medical evidence since they claimed UC or first reported their health condition
• Your client has not received a form UC50 and/or has not been referred for a work capability assessment (WCA) at all or within a reasonable time

This letter assumes that (so can be changed)

• Your client has not already been found to have limited capability for work (LCW)
• Your client is subject to inappropriate UC conditionality

The main legal arguments in this template are:

1. A WCA finding on whether a claimant has LCWRA is incorporated into a decision on entitlement, i.e., whether that claimant is entitled to the LCWRA element, made under s.8 of the Social Security Act 1998 (SSA 1998) under which the Secretary of State shall “decide any claim for a relevant benefit”. The duty to make a decision within a reasonable time applies to s.8 of the SSA. What counts as a reasonable time depends on all the circumstances, including the impact on the claimant.
2. DWP failure to refer the claimant for a WCA within a reasonable time to establish whether they have LWCRA fails to give effect to the policy intention behind the removal of severe disability premium and enhanced disability premium in legacy benefits as it leaves claimants with serious health conditions with only the standard UC allowance.
3. Provision of an additional LCWRA element is necessary to avoid the discriminatory impact of treating those with and without disabilities the same. Failure to assess a claimants capability for work such that they do not receive the additional LCWRA element,  and are potentially required to undertake work-related activity, amounts to indirect discrimination contrary to the Equality Act 2010.

Information about your client

• name
• address
• national insurance number (NINo)
• date of birth (DoB)

Background facts

Such as:

•  when your client started receiving UC and their reasons for applying
• details of your client's health condition/disability and when and how this has been notified to the DWP and when and how the DWP has responded
• details of your client's current UC conditionality
• whether your client has incurred a UC sanction, and if so, when
• consequential losses (financial and emotional distress) arising from sanction (if relevant)

Information relating to the decision

• any reasons DWP has given for not referring your client for a WCA yet, and for subjecting your client to conditionality
• the dates of all relevant decisions
• any specific errors made by the DWP
• any steps your client has taken to clarify their position and the relevant dates
• how and when your client was notified of the refusal to amend their conditionality (if relevant)

We've created this guide is to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.