EWS eBulletin – LCWRA and cancer treatment
The Early Warning System collects case studies from welfare rights advisers and members of the public. We use this evidence in CPAG's campaigning, policy and legal work.
New briefing on managed migration
We continue to hear about problems with ESA claimants migrating to UC. We published a briefing for ministers in August outlining some issues and recommendations. Many thanks to all those who sent us their case studies, and please do continue to share them.
The issue
We have seen multiple cases where UC claimants undergoing cancer treatment, affecting their ability to work, are not being treated as having LCWRA under Schedule 9 of the UC regulations. They are being told they need a WCA to determine this but that, due to earnings from their contractual sick pay, they are not eligible for a WCA.
A woman was diagnosed with cancer and notified UC, at which point she was told she couldn’t be referred for a WCA as her earnings from contractual sick pay were too high. After a welfare rights adviser queried this on the claimant’s journal, citing the relevant legislation, the DWP reiterated that they were unable to award the LCWRA element until a WCA had been carried out – which the claimant is ineligible for due to her earnings.
As a result, these claimants are stuck in an inappropriate conditionality group without the extra financial support, and seemingly no way to change this.
Treated as having LCWRA
According to regulation 40(1) of the Universal Credit Regulations 2013, a claimant has LCWRA if they are either:
- found to have LCWRA (via a WCA), or
- treated as having LCWRA.
A claimant is to be treated as having LCWRA if any of the circumstances set out in Schedule 9 applies (regulation 40(5)).
Paragraph 3 of Schedule 9 includes claimants who are receiving, likely to receive, or recovering from cancer treatment by way of chemotherapy or radiotherapy.
Being treated as having LCWRA does not require a claimant to undergo a work capability assessment. Guidance in Advice for Decision Makers (ADM) at G3005 confirms this, stating: ‘Certain claimants can be treated as having LCWRA and do not have to undergo the WCA. This is where the claimant...is receiving or likely to receive or recovering from treatment for cancer by way of chemotherapy or radiotherapy'.
Although there is no requirement in legislation for a WCA to be carried out, paragraph 3 of Schedule 9 does stipulate that the Secretary of State must be ‘satisfied that the claimant should be treated as having limited capability for work and work-related activity’; ADM G3015 – G3017 provides examples of this.
Earnings and the work capability assessment
Things are going wrong because the DWP appear to be making those who come under paragraph 3 of Schedule 9 undergo a WCA before they can be treated as having LCWRA. The problem is, for claimants with monthly earnings above the 'relevant threshold’, regulation 41(2) of the UC regs prevents the DWP from carrying out a WCA and requires them to be treated as fit for work. The relevant threshold is the equivalent of earning 16 times the national minimum wage a week, as a monthly amount.
There are some exceptions that allow a WCA to still be carried out in this situation. Most commonly, if a claimant is in receipt of a qualifying disability benefit. The Early Warning System received the following case study:
A woman reported on her journal that she had been diagnosed with cancer and was about to commence a long period of treatment. The claimant has been supplying continuous fit notes since then. The DWP initially advised the claimant she could not have a WCA due to her earnings from contractual sick pay being too high, so she continued to remain in the all-work-related-activity group and received no LCWRA element. The claimant was subsequently awarded PIP and was advised that she was now eligible for a WCA.
Although the claimant will now undergo a WCA and likely be found to have LCWRA, this is not the correct process. She should have been able to be treated as having LCWRA without needing to qualify for a WCA.
This is because regulation 41(2) states that, in cases where the DWP may not carry out a WCA (eg, due to earnings), they should not be treated as fit for work if instead they fall within the ‘treated as’ provisions under reg 40(5). This allows a claimant to still be treated as having LCWRA if any of the circumstances set out in Schedule 9 apply, regardless of their earnings and whether they prevent a WCA from being carried out.
Problematic guidance?
The DWP operational guidance ‘Treated as having Limited Capability for Work and Work Related Activity and day 1 WCA Referrals’ (V21) suggests, contrary to regulations and DWP policy, that all claimants undergoing treatment for cancer 'can be referred for a Work Capability Assessment at day 1' and 'remain in a conditionality regime based on their individual circumstances until a decision is made based on the outcome of their WCA'.
This means that claimants unable to undergo a WCA, such as those in receipt of contractual sick pay above the threshold, are never treated as having LCWRA. As such, this guidance appears to be imposing a requirement that is not provided for by the legislation.
We queried this guidance with the DWP and asked how UC claimants in this situation provide the evidence required to be treated as having LCWRA. The DWP advised that:
the ‘Offer WCA’ to-do is currently being redesigned to formalise the existing process of supporting employed claimants for a ‘treat as’ decision. This applies when they have earnings above the threshold and no qualifying benefits but may still meet the criteria for being treated as having LCW or LCWRA. The updated process will allow these claimants to provide evidence that they may meet the ‘treat as’ criteria (eg, evidence of receiving treatment for cancer). This will enable them to be referred to a Decision Maker for consideration of a ‘treat as’ decision without the need for a WCA.
Presumably, these changes will enable claimants to provide evidence they meet the ‘treat as’ criteria more easily if they are unable to be referred for a WCA. At time of writing, the operational guidance remains unchanged.
Getting the DWP to fix it
If, having provided evidence of their cancer treatment, a claimant is told they can’t be treated as having LCWRA until they undergo a WCA, which they are ineligible for, this is arguably a refusal to supersede and is a decision that carries appeal rights.
Provided they have already submitted evidence of their cancer treatment, the claimant can request a mandatory reconsideration, citing the relevant legislation and ADM guidance, requesting the DWP revise the decision and treat them as having LCWRA.
For advisers based in England and Wales, CPAG’s judicial review project has also developed a pre-action letter for claimants in this situation, which also challenges the operational guidance. You can contact our judicial review project at [email protected].
As always, feel free to get in touch with CPAG’s support services for advisers for assistance with challenging these decisions.
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:
- Experiences migrating to UC - we want to know about any difficulties claimants are having migrating to UC.
- Benefit cap and the two-child limit - do you have any clients subject to the benefit cap or two-child limit? We need real stories showing the impact of these policies on families.
- Mixed ESA claims and managed migration - we're interested to hear if any claimants who migrated to UC with a mixed award of ESA have challenged the potential unlawfulness in how their run-on is treated under UC regs. We published a Welfare Rights Bulletin article: 'ESA to UC: run-on unlawfulness?' about this in February 2025.
Submit a case online or email [email protected] to tell us more. We can also be reached by phone on 020 3955 4493.
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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This briefing is funded by the Legal Education Foundation and an Improving Lives Through Advice (ILTA) grant from the Access to Justice Foundation and the National Lottery Community Fund.