Use this template to challenge DWP's refusal to treat your client as having limited capability for work-related activity (LCWRA) when they are undergoing treatment for cancer because they have earnings (which are contractual sick pay).
These letters are for advisers, not members of the public.
If you don't have an adviser, you may be able to find one at advicelocal.uk
You can use this template if all of the following apply:
Your client:
This letter assumes (so can be edited):
Your client:
Do not use this template if your client receives PIP.
Instead, please seek assistance from us at [email protected].
If PIP has been awarded some time after the cancer diagnosis, this letter may still apply if the LCWRA element is not backdated to the 4th assessment period after your client notified DWP of their cancer (if the PIP award starts before this date).
These letters are for advisers in England and Wales. Please be aware that the pre-action protocol doesn't apply in Scotland. See our document explaining some of the changes needed to use them in Scotland.
The main legal arguments in this template are:
Claimants undergoing treatment for cancer and unable to work as a result should be treated as having limited capability for work-related activity (LCWRA) under reg 40(5) and para 3 sch 9 of the Universal Credit Regulations 2013 (UC Regs) and are entitled to the LCWRA element under regs 27 and 28(2)(b) 3 months from the date when they made a request for the LCWRA element by providing DWP with a fit note from their GP and explained that they would be undergoing cancer treatment and are unable to work.
Under reg 41(2) UC Regs, the Secretary of State ‘may not carry out an assessment’ if a claimant has earnings above the relevant threshold (16 x national minimum wage). However, reg 41(2) confirms that, in cases where the DWP may not carry out an assessment, it does not disapply the ‘treated as’ provisions under reg 40(5) which says 'a claimant is to be treated as having limited capability for work and work-related activity if any of the circumstances set out in Schedule 9 applies'. Schedule 9 includes ‘treatment for cancer’.
DWP’s Advice for Decision Makers guidance confirms “G3005 Certain claimants can be treated as having LCWRA and do not have to undergo the WCA.”
DWP operational guidance ‘Treated as having Limited Capability for Work and Work Related Activity and day 1 WCA Referrals’ (V21) which states claimants who are 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” means claimants who are receiving contractual sick pay of more than 16 x national minimum wage, are never treated as having LCWRA. This guidance is ultra vires the legislation.
Such as:
We've created this guide 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.
This template could be adapted for refusal to treat a claimant as having LCWRA due to pregnancy because they have earnings.
Help for advisers using the judicial review pre-action protocol to resolve welfare benefit problems.
What judicial review is and how it can help
If you've sent a judicial review pre-action protocol letter but it hasn't produced the desired result, and your client wants to take it further, you'll need to refer your client to a solicitor.
