What’s relevant? LCWRA and the ‘relevant period’ in UC

What is the relevant period?

The ‘relevant period’ rules are within under regulation 28 of the Universal Credit Regulations 2013 (the ‘UC Regs’). Regulation 28 (1) provides that an award of UC will not include the LCWRA element until the assessment period that follows the assessment period where the relevant period ends.

Specifically, regulation 28(2) provides that:

‘(2) The relevant period is the period of three months beginning with –

(a) if regulation 41(2) applies (claimant with monthly earnings equal to or above the relevant threshold) the date on which the award of universal credit commences or, if later, the date on which the claimant applies for the LCWRA element to be included in the award; or

(b) in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.’

It is clear that the relevant period is a period of three months. However, it is when this relevant period begins that causes many a wrong decision. There are two possible starting points.

Firstly, if regulation 41(2) of the UC Regs applies (ie, where a claimant’s earnings are at her/his relevant earnings threshold and s/he is entitled to a disability benefit or a review of a previous assessment is being carried out), then the relevant period will begin on the date of the UC claim or, if later, the date the claimant ‘applies’ for LCWRA to be included within the award. (In practice, the ‘application’ for the LCWRA element will simply be when the claimant declares any health conditions within the UC account under the ‘Health’ section either at the point of claim or later as a change of circumstances.)

In all other cases, however, the relevant period will begin on the first day the claimant provides ‘evidence of limited capability for work’ (LCW) that is in accordance with Medical Evidence Regulations, meaning the Social Security (Medical Evidence) Regulations 1976.

‘Evidence’ of LCW

The most common form of evidence of LCW is the ‘statement of fitness for work’, also known as a ‘fitness for work note’ or ‘fit note’. However, it is vital to remember, this is not the only form evidence that is acceptable (letters and health reports should also be accepted).1 In addition, self-certification for the first seven days of LCW is also acceptable evidence.2 DWP guidance (Advice for Decision Making (ADM) Chapter F5: ‘The LCWRA element’ )3 at paragraph F5031 and example 1 (regarding ‘Dom’) expressly states that the date a claimant first informs UC of ill health is the first day on which the claimant provides evidence of LCW for the purposes of determining when the relevant period will begin. Where, after self-certification, the ‘fit note’ is provided at a later date, the relevant period will begin on the first day of self-certification, resulting in the LCWRA element being included within the UC award from that earlier date.

Exceptions to the relevant period

• Where the LCWRA element was included within a previous UC award which ceased either due to the claimant forming or ceasing to be a member of a couple or where a previous UC award ended within six months of a ‘new’ or current UC award due to a ‘nil award’ (not meeting the financial condition of prescribed minimum amount of 1p), then the relevant period will not apply to the current UC award. However, if the relevant period had already begun in the previous award, then it continues to run and ends on the date it was due to end within the previous UC award.4
• The relevant period does not apply if the claimant is terminally ill or is entitled to new-style contributory employment and support allowance (ESA) that included the support component, or was so entitled on the day before the UC award began but has stopped getting it due to time limiting.5
• No relevant period applies in cases of transfer from old-style ESA (be it income-related or contributory) to UC. Where the claimant was entitled to old-style ESA on the date on which UC was claimed, and had LCWRA, the claimant is treated as having LCWRA for UC and (unless the assessment phase had not ended) no relevant period applies, and so the LCWRA element is included from the beginning of the first assessment period of the UC award.6
• A similar rule applies in ‘credits only’ cases, where the claimant was not actually entitled to old-style ESA when UC was claimed but did have entitlement to national insurance credits for LCW, and still has such entitlement – and, regarding the LCWRA element, had LCWRA.7 In such cases, again the claimant is treated as having LCWRA for UC, and no relevant period applies. The recent case of JW v SSWP (UC) [2022] UKUT 117 (AAC), has confirmed that in such cases there can be a gap between the ESA ending and the UC claim beginning, but the relevant period will not apply and the LCWRA element should apply from the start of the UC award. The ESA award must not have ended due a claimant no longer having LCW – ie, s/he must not have failed the work capability assessment. If credits for LCW have continued, the gap can potentially be indefinite or until a further assessment of LCW is made. In JW, the Secretary of State made clear that, as long as the claimant still has LCW, credits for LCW can continue without the need for any kind of reclaim.

LCWRA: ‘new-style’ ESA and UC

A new-style ESA8 claimant is treated as having LCWRA, if assessed as having LCWRA under the UC Regs.9 Similarly, a UC claimant is treated as having LCWRA if assessed as having LCWRA under the Employment and Support Allowance Regulations 2013.10

Where, on the date of UC claim, a claimant is in receipt of an award of ESA with LCWRA, then the relevant period exception applies and the LCWRA element is included from the start of the UC award.11

Difficulties arise, however, when a claimant is assessed as having LCWRA for an ESA award, which begins after the start of, or during, a UC award. In these cases, for purposes of UC, the claimant has LCWRA (as per regulation 40 of the UC Regs), but when should the relevant period start and the LCWRA element be included?

Evidence already provided to UC?

Technically, as the LCWRA determination was made for the purpose of the ESA award, then the LCWRA determination cannot be retrospectively applied to UC on a date before the start date of the ESA award. As such, it is only from the date of the ESA award, that a UC claimant can also have LCWRA, and this means the relevant period starts from that date. However, where the UC claimant provided evidence of LCW (self-certification/‘fit note’/other medical evidence) at the start of her/his UC claim or at least at any point prior to the ESA award beginning, then it is arguable that (applying regulation 28(2)(b) of the UC Regs) the relevant period begins on the date the evidence was provided, resulting in the LCWRA element being included at an earlier date and prior to the ESA award beginning.

Evidence not provided to UC?

If the above argument is not possible, then it may well be that supersession or revision rules have to be relied on, and it is still more difficult to avoid the three-month relevant period right from the start.

A ground for superseding a current award of UC applies where the Secretary of State has received a new medical report – eg, on a work capability assessment for new-style ESA.12 The relevant period does not apply in this case as the claimant will already be entitled to an award of ESA that includes the support component. From that point, the ESA award will give rise to the exception to the relevant period. The effective date for supersession and when the LCWRA element will be included in the assessment period is the date when the ESA award began.13

But what about before the start of the ESA award? The situation is yet more difficult, because the basic rule for a supersession is that it (and, therefore, the start of the relevant period) takes effect only from the date it is applied for. If a claimant’s health conditions had worsened after becoming entitled to UC but before any entitlement to new-style ESA began, an option would be to seek a supersession of the UC award based on a late notification of a change of circumstances – ie, after the standard one month. These notifications must be made within an absolute time limit of 13 months from the date of the change. Details of the change, reasons for the delay in reporting it and why it is reasonable to grant the request must be made.14 The DWP would need to be satisfied that the change was such that LCWRA applied and the LCWRA element can potentially be backdated up to maximum of 13 months. However, even if the DWP accepts the late supersession request, the date on which the relevant period begins still poses difficulties due to the date evidence of LCW was provided,15 which in these cases is usually not any date prior to the ESA award. A backdated fitness for work statement, however, is evidence of LCW relating to a past period, which may be sufficient for the relevant period to begin from the date the late supersession based on the change of circumstances is effective (date of change).

If no such evidence can be provided, then it is a high hurdle to overcome and would be up to the decision maker whether to begin the relevant period from the same date as the date of change – and a request for that could be made.

Where there was no change of circumstances and the claimant arguably had LCWRA from the start of the UC award, then in these cases a revision based on an ignorance of facts may be possible, but much will depend on the individual facts of each case.