Early Warning System eBulletin - July 2023

The Early Warning System collects evidence from advisers about how changes to the benefits system affect their clients. We use this data for campaigns, in discussions with government, and in advice resources.

We continue to hear about the LCWRA element being added to UC from the wrong date:

Note: throughout this e-Bulletin we talk about a three month wait for the LCWRA element. Specifically, where this rule applies, the LCWRA element is added from the assessment period following the one in which the three months expires.

The issue

One of our contributors got in touch recently because her client's LCWRA element had not been paid from the right date. Getting this mistake fixed led to DWP paying arrears of nearly £10,000.

Unfortunately, this is not an isolated example. The Early Warning System regularly hears about cases in which the LCWRA element starts significantly later that it should.

In the simplest cases, you should expect to see the element added to your client’s award three months after they first provide a fit note (see Sources). In other cases the rules can take some explaining.

Here are some examples of the types of mistakes we hear about on the Early Warning System.

When moving straight from ESA to UC

Somebody moves from old-style ESA (support group) to UC, without a gap. In this situation, they should generally have a LCWRA element included in their UC from day one. See Sources.

We wrote about this in more detail in our February 2022 eBulletin. Unfortunately, this does not always seem to happen automatically.

One ESA (support group) claimant moved to UC in 2020, seemingly without a gap in entitlement, but did not get the LCWRA element until 2022. 

New claim, first work capability assessment (WCA)

Somebody makes a new UC claim. They aren’t moving straight from ESA in the way described above. Perhaps it’s their first time claiming a health-related benefit. They declare their health condition in their UC claim and provide a fit note right away. They wait for a work capability assessment and then get a decision that they have LCWRA. However, the element is only paid from the date of that decision.

This is wrong. In this case the LCWRA element should generally be paid from the fourth UC assessment period. See Sources. 

One individual claimed UC in February 2021 and submitted a fit note straight away but was not assessed until August 2022. He finally got a work capability decision in autumn 2022, and had the LCWRA element added to his award, but only from the date of the decision. He was missing at least 14 months’ worth of entitlement. The decision was not changed at mandatory reconsideration so he is having to pursue an appeal.

 

Another new UC claimant had the LCWRA element added to his award 7 months late. He is a father-of-two who claimed UC after giving up work due to illness. The decision was changed at mandatory reconsideration. 

Already on UC, first WCA

In the next scenario, a claimant is already getting UC, without LCW or LCWRA status, then they report a new or worsening health condition that affects their ability to work. They provide a fit note. The DWP assesses them and finds them to have LCWRA – but the element is only paid from the date of the DWP’s decision.

Again, this isn’t right. This claimant should get the LCWRA element from the point three months after submitting a fit note. See Sources. 

One UC claimant who was considered ‘fit for work’ declared a new health problem in February 2021 and submitted a fit note, but had to wait until March 2022 for a UC50, August 2022 for an assessment, and November 2022 for a work capability decision. She was found to have LCWRA but the element was added to her award from the decision date. On mandatory reconsideration this was changed to another incorrect date which was still 11 months late. The LCWRA element was finally applied from the correct date only after the decision was challenged further.

 

Another claimant was wrongly told that her LCWRA element would start three months after the date of her work capability decision, when it should have started three months after she first provided a fit note.

Already on UC with LCW, new WCA

A claimant is already getting UC and has LCW status. They report a new or worsening health condition and ask the DWP to reassess them and supersede their award to include a LCWRA element. The DWP does this – but the LCWRA element is only paid from the date of the DWP’s supersession decision.

This one is complicated. Technically, DWP may have grounds for paying the element only from the decision date. However, they also have grounds for paying it from the date that they were notified of a change of circumstances – and they should use this more generous rule where it applies. See Sources.

Note that things might be different if the LCWRA element is awarded as the result of a routine re-assessment (ie, if it was not prompted by the claimant telling the DWP about a change of circumstances).

A claimant with existing LCW status told the DWP about his new health condition in March 2022 but didn’t get a new work capability decision until November 2022 and was only paid the LCWRA element from that date. On mandatory reconsideration, this decision was corrected and he was paid arrears of the element going back to March 2022. 

Contributory ESA alongside UC

A claimant is getting contributory ESA alongside their UC. They have already had a work capability assessment for ESA and been put in the support group. In this situation, they should get a LCWRA element in their UC without needing another assessment – and this should be paid from the date they were put in the support group. See Sources.

One claimant and their appointee have needed significant help from an advice worker to get the LCWRA element retrospectively included in UC after the claimant won a contributory ESA appeal and was placed in the support group. 

What CPAG is doing

CPAG is considering an online tool to help advisers check that a client’s LCWRA element has started from the right date. Please email us​ if you would like to hear more. We are also planning to raise these recurring errors with the DWP.

We know that this topic can tie in with both assessment delays and failures to send out UC50s. Both of these issues are reported regularly to the Early Warning System. Problems with the dispatching of UC50s were acknowledged in the Work and Pensions Committee’s recent report into health assessments for benefits. NAWRA and others were instrumental in highlighting this issue to the Committee.

In the DWP’s recent Health and Disability White Paper, it was proposed that the LCWRA element is abolished in future and replaced with a new UC health element. Entitlement for this new element would depend on getting a qualifying disability benefit. We have written a briefing about this proposal - The future of the work capability assessment - and would be interested to hear your thoughts. 

Sources and more information

The rules discussed in this eBulletin are explained in more detail in CPAG’s Welfare Benefits and Tax Credits Handbook 2023/24, at pp70-72 and pp1262-1265. 

Do you have something to tell us?

Hearing about your cases has a profound impact on our work.

Some of the topics we are looking out for include:

  1. Deductions from UC – How much are your clients living on, after deductions for advances, overpayments, and third party debt?
  2. The benefit cap and two-child limit – We need real case studies showing their impact on families. 
  3. Claimants who are benefit capped while they are on maternity leave – Our legal team would like to hear from you/your client.

Submit a case online or email the Early Warning System​ to tell us more. We can also be reached by phone on 0207 812 5226.

If you know an individual who would like to contact us directly about their own case, please let them know about our contact form for non-advisers.

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