UC and disability

 

The main UC element for a claimant with disability (and limited capability for work) is the ‘limited capability for work and work-related activity’ (LCWRA) element. The test for LCWRA is the same as thatfor the support component of employment and support allowance (ESA). Those with LCWRA are treatedas having limited capability for work and do not have any ‘work-related requirements’ imposed.1 Main rules on elements are contained in regs 23–37 Universal Credit Regulations 2013 No.376 (‘the UC Regs’) (In pre-3 April 2017 cases and some transfer to UC cases, claimants may be entitled a limited capability for work element – ie, equivalent to the former ESA work-related activity component.)

For disabled children, there is a ‘disabled child addition’ to the child element. The key is the child’s entitlement to either disability living allowance (DLA) or personal independence payment (PIP). There is a lower and a higher rate addition. The lower rate (currently £126.11 a month), however, is worth less than half the disabled child element in child tax credit or the old disabled child premium in income support. For claimants who lose out on transfer to UC, this is currently the subject of legal challenge (see ‘Migration to UC’ below). The addition is still paid even if, due to the ‘two-child limit’, the child element itself is not paid for the child.

Claimants who are caring for a severely disabled person are entitled to a carer element if they have ‘regular and substantial’ caring responsibilities. That means that they satisfy, or would satisfy were it not for earnings rules, the conditions for carer’s allowance (CA). It is not required actually to have claimed CA.

Importantly, there are no direct equivalents to the disability premiums that may be paid with ‘legacy’ benefits – ie, the disability, enhanced disability or severe disability premiums. Although the level of the LCWRA – currently at £328.32 per month or £75.66 a week – may be thought to compensate to some extent, there is an obvious gap in entitlement for certain severely disabled claimants. This has already led to legal challenge (see ‘Migration to UC’ below).

The requirement for claims to be made and maintained online poses obvious difficulties for some claimants with disabilities.2 The basic requirement is at reg 8 Universal Credit (etc.) (Claims and Payments) Regulations 2013 No.380 (‘UC etc Claims and Payment Regs’) There is no paper form. Official information promises that ‘if you cannot claim easily online your local jobcentre will help you.’3 For example, in some cases, it has been possible for a home visit to be arranged to complete the claim; in other cases, not. The DWP’s ‘assisted digital overview’ lists telephone support and home visits among the options that are available.

The basic requirement to accept a ‘claimant commitment’ has no specific disability-related exception. More widely, the requirement can be waived in (rare) cases where it is accepted the claimant lacks the capacity to act or where insistence on acceptance would be unreasonable.

In practice, maintenance of online claims has sometimes proved problematic where claimants need a representative to act for them. For UC, the DWP does not apply ‘implicit’ consent for a representative to access and use the online journal to communicate (though MPs do have such consent), and instead requires ‘explicit’ consent for this from the claimant. Official guidance on explicit consent sets stringent conditions, including explanation from the claimant and time-limiting the consent.4 Reg 57 UC etc. Claims and Payments Regs The benefit cap does not apply to UC where the claimant (or her/his partner) gets the LCWRA element, the carer element, CA, DLA or PIP (or where a child gets DLA or PIP).5 Reg 83 UC Regs

Claimants with LCWRA have no conditionality (or ‘work-related requirements’). Neither do carers who are entitled to CA or who would be but for the earnings rules, or other carers looking after a severely disabled person where the DWP is satisfied it would be unreasonable to impose requirements.6 Main rules on conditionality are at sections 19–25 Welfare Reform Act 2012 and regs 84–99 UC Regs

Claimants who merely have limited capability for work (ie, pass the WCA but are not in the support group) may be required to attend interviews and undertake work-related activity, but not to undertake work search.

Work search requirements can be less than the standard 35 hours a week where the DWP considers that reasonable in the light of ‘physical or mental impairment’ or for a carer. Work search requirements can be lifted for a very limited period after submission of a medical certificate, and for a longer period where considered reasonable.

Under official guidance, ‘complex needs’ considerations should be applied regarding any vulnerable person before a sanction is applied to them.7 Advice for Decision Making Volume K2, paras K2054-58

UC can be paid in and out of work. There is no equivalent of the UC ‘permitted earnings rule’. However, disabled claimants getting disability benefits (DLA, PIP or attendance allowance – AA) or whom have already been assessed as having limited capability for work for UC will be assessed/considered for re-assessment under the work capability assessment (WCA) if they earn at or above a certain threshold of the National Minimum Wage for a 16-hour week.8 Reg 41 UC Regs

Claimants not entitled to disability benefits or who have not already been assessed as having limited capability for work for UC will automatically be regarded as not having limited capability for work (and no WCA will apply) if they earn at or above the threshold.

Claimants with limited capability for work are entitled to a ‘work allowance’, effectively an earnings disregard in UC.

Disabled students getting PIP, DLA or AA andwho have been assessedas having limited capability for work are among those who can still get UC while ‘receiving education’.9 Reg 14 UC Regs

Any claimant may transfer (or ‘migrate’) from legacy benefits to UC in two ways:

Under ‘managed’ migration, rules currently in draft form will provide transitional protection so that, at point of transfer, the UC is not worth less than the old legacy benefit. So here (at least in theory), the lower amounts for disability in UC will be mitigated.10 Draft Universal Credit (Transitional Provisions) (Managed Migration) (Amendment) Regulations 2018 (the ‘Migration Regs’)

However, there is no transitional protection in ‘natural’ migration. Here, claimants who transfer could be worse off on UC. This has already been the subject of a successful legal challenge – with a finding of a breach of human rights – regarding loss of the enhanced disability or severe disability premiums for claimants who move home and have to claim UC.11 TP and AR v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin) (14 June 2018) However, the court’s solution was to not to change the law but rather to permit the Secretary of State to devise her own remedy. Accordingly, a draft rule is intended to

prevent ‘natural’ migration in severe disability premium cases and, in cases where that has already occurred, pay a ‘transitional payment’ (but, which, in draft form anyway, does not fully compensate in support group cases).12 Reg 63 draft Migration Regs

CPAG is maintaining a challenge about the absence of transitional protection in natural migration in other cases, involving claimants who transferred to UC following failure of the WCA but who subsequently won their appeal, and those with disabled children who transferred to UC having wrongly been refused income support.13 See

 

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