Carer Element /LCW Issues
There are a couple of strange situations where a claimant can lose more than they gain:
- If they have the Carer Element and a Transitional SDP Element / Managed Migration Transitional Element in their UC assessment, they could be worse off if they become entitled to the LCWRA Element.
- If they have the LCW Element and Transitional SDP Element / Managed Migration Transitional Element in their UC assessment, they could be worse off if they become entitled to the Carer Element.
This is because the UC Regulations state that a Carer Element and LCWRA Element cannot be included in a UC award in respect of the same claimant and the Transitional Element rules state that the Transitional Element is reduced by any new Elements included, but ignoring any that are lost.
We are awaiting the decision of the Upper Tribunal who looked at this issue at the end of October 2024.
Where a claimant has been affected by this in the past then, should the Upper Tribunal find in the claimant's favour, they should have the amount of their Transitional Element reassessed to take account of the Judge's decision.
They will need to request this by way of a supersession, but whether they receive any back payment will depend on whether or not they had already challenged the erosion decision otherwise they could be caught by the 'anti-test case' rules.
So what should any claimant's affected by this do now?
For anyone whose UC Transitional Element has been eroded:
- when they were awarded the LCWRA Element instead of the Carer Element, and
- they were worse off overall, as a result of the erosion of their TE and loss of the Carer Element, and
- that change happened within the last 13 months, and
- they have not already requested a Mandatory Reconsideration of that decision.
Then it is not too late to challenge the fact that they were made worse off. There are no guarantees of success, but there is no harm in them adding a note to their journal (marked as a message about their payments) as soon as possible.
Sample Message:
I am requesting a Mandatory Reconsideration of the decision to erode my Transitional Element. I was made worse off overall when my Transitional Element was eroded by the addition of the LCWRA Element to my award. I lost my Carer Element at the same time and my UC reduced because of these changes. I believe that to be discriminatory against me. Other claimants who swap from having a Carer Element to having the LCWRA Element are not made worse off when that happens. The fact that my Transitional Element was eroded as part of that change made me worse off. It is unfair to treat carers who then become people with LCWRA worse than non carers in this way.
I am making a late MR request. I have not been able to make this request sooner because (give reasons).
Their MR request is likely to be rejected. But if they receive the MR decision before the Upper Tribunal publish their judgement in this case, and the Upper Tribunal decision is against the DWP, then the claimant can then appeal the MR decision and request that this new caselaw is taken into account and they may get some back pay as a result.