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Claimants moving from ESA onto UC being refused a LCW/LCWRA Element because their Work Capability Assessment is overdue!

We have become aware of a problem affecting some Universal Credit claimants who:

  • have moved from Income Related ESA onto Universal Credit, due to a change in their circumstances other than being found fit for work; or
  • are receiving Contributory ESA and have needed to claim a top up of Universal Credit.

The issue is that some claimants have found that the UC department are refusing to include the LCW or LCWRA Element from the start of the UC award, on the grounds that the claimant’s review Work Capability Assessment is overdue – and therefore their ‘unfit for work’ status on their ESA is not carried forward to their UC claim.

We believe that this is wrong! 

Work Capability Assessments and reviews

Work Capability Assessments are used by the ESA dept to establish whether someone remains entitled to ESA, and, if so, whether they are in the Work-Related Activity Group or the Support Group. In Universal Credit, the WCA is used to establish whether a claimant has a Limited Capability for Work or a Limited Capability for Work Related Activities.

When someone is assessed under the WCA, a review date is normally recommended by the Healthcare Professional who conducts the examination. The recommendation might be that a claimant is reassessed in 18 months’ time, 3 years etc. (Note that if the claimant’s condition changes before the review date – that might trigger the need for an earlier re-assessment).

However, many ESA claimants are not reviewed around their recommended reassessment date, due to delays in the system! 

What should happen?

What is important to note is that, once a decision has been made that a claimant is in the WRAG or the Support Group, then, even if the recommended review date comes and goes without the claimant being put through another WCA, the DWP cannot take away that status (ie supersede the decision) simply because someone has not yet been re-assessed! 

Regulation 6 (2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that an ESA decision may be superseded if a Healthcare Professional has provided the decision maker with medical evidence. 

In other words, a decision maker cannot remove the WRAG or Support Component unless a further WCA has taken place. 

Does it make a difference that the claimant's assessment was done by ESA but they are now on UC?

We don’t think so! For the following reasons:

  1. Regulation 19 of the UC Regulations specifies that those who move from ESA onto UC (and who have not been found fit for work), are to have:

    The LCW Element included in their UC assessment from the start of their UC award if they were in receipt of the Work Related Activity Component in their ESA award, or
    The LCWRA Element included in their UC assessment from the start of their UC award if they were in receipt of the Support Component in their ESA award.

    This means that the work capability decision MUST be transferred across from an ESA award to a UC one.
  2. Regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (for IR-ESA) and Reg 26 of the Universal Credit, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013 (for UC and New-Style ESA), both say that decisions on the WRAG/Support group for ESA and on the Limited Capability for Work/Work Related Activity in UC cannot be superseded - ie taken away - without evidence from a Healthcare Professional.

Therefore, even where the WCA review date has passed, the DWP cannot refuse to include a LCW /LCWRA Element in the UC assessment until a review WCA has been completed ie evidence from a Healthcare Professional received.

In addition, it would be unfair and discriminatory to penalise a claimant simply because, due to administrative delays within the DWP / the company contracted to organise and carry out Work Capability Assessments, they have not been reassessed on the planned date.

For those claimants who are refused a LCW/LCWRA Element on the grounds that their re-assessment is overdue can use one of the following standard letters. UC LCW13 is for those who have moved from Income Related ESA onto UC and UC LCW14 is for those getting Contributory ESA and UC.