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Relevant period when WCA delayed due to earnings.
Client claims UC and declares health condition with Fit Note saying their ability to work is limited. However client is employed and earnings above the earnings threshold that permits a WCA referral so WCA cannot commence. A few months later has reduced hours of work and drops below threshold and WCA can commence.
My question is, if found to have LCWRA, when would the relevant period start from. Is it 1) from when they reported, and evidenced, the health condition or is it 2) from some later date, and if so when?
If the answer is 1) this could conceivably result in LCWRA element being payable from before the WCA referral was actually made which seems a little bizarre or would they not be entitled to LCWRA element until the wages have dropped even if the relevant period is treated as served..
In terms of the WCA referral earnings threshold the rules refer to in work and earning. I am not clear whether this means actually working and earning or would also mean that that on sick leave with sick pay over the threshold would also preclude a WCA referral. If there is a difference in treatment UC are not going to pick this up from the RTI feed.
Thoughts welcomed.
Just bumping this in case anyone has any thoughts.
I know there are those on here who will disagree with this, but I think this is how it would work:
The UC Regs, Reg. 28(2)(b) provides for the relevant period to begin when “the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations”.
I think this means it has to be evidence provided under the SS(Medical Evidence) Regs, Reg. 2(1) which discusses a requirement to “provide” evidence.
That requirement to provide evidence is only engaged “where a person claims to be entitled to [the LCWRA element] and entitlement [...] depends on that person [...] having limited capability for work”.
In your case, the claimant cannot be claiming to be entitled to the LCWRA element until their earnings have dropped (as until that point they are treated as not having LCW). So I think they would have to provide a fit note when their earnings drop, and the relevant period would then start.
Regarding you last paragraph, although the guidance refers to being “in work”, the regs (UC Regs, Reg. 41(2)) only mention earnings, so sick pay would count.
Thanks, Charles. That seems logical to me.
Thanks too for the clarification re sick pay. Unfortunately that penalises claimants with more generous employers who are delayed from getting a WCA. Not an issue for most of my client group because they are not subject to the earnings rule anyway but hard on others.