Ask CPAG Online - How does limited capability affect UC?

This section looks at how whether or not you are assessed as having limited capability affects your UC. It looks in particular at the work capability elements that you might be entitled to, and how your UC ‘responsibilities’ are affected.

Whether you have limited capability affects your UC in the following ways:

  • Whether you can have a work capability element included
  • Your ‘responsibilities’ for UC
  • Whether a work allowance can be included
  • Whether the benefit cap can be applied
  • If you are aged 16 or 17
  • If you are a disabled student

Work capability elements

If you are entitled to UC and are assessed as having limited capability, your UC may include an extra amount of money called a ‘work capability’ element.

You may be entitled to one of two work capability elements:

  • A ‘limited capability for work-related activity’ element, if you have limited capability for work and work-related activity (i.e. you are in the support group for UC). This element is sometimes also called the ‘limited capability for work and work-related activity element’; or
  • A ‘limited capability for work’ element, if you claimed before 3 April 2017 and your limited capability before that date needs to be considered, and you are assessed as just having limited capability for work (i.e. you are in the work-related activity group for UC). You cannot get this element if you first became ill after 3 April 2017. You can get it if you were getting the limited capability for work-related activity element, but are re-assessed as just having limited capability for work. You can get this element if you were getting employment and support allowance or benefit for incapacity for work (or national insurance credits for illness) before immediately before 3 April 2017 and then claim UC. The rules on this ‘transitional protection’ to the element are in Schedule 2 to the Employment and Support Allowance and Universal Credit (Miscellaneous Amendments and Transitional and Savings Provisions 2017.

What if you are entitled to other elements of UC?

Only one work capability element is awarded, whichever is the higher. This applies even if you are in a couple and both of you would be entitled to an element.

If you are entitled to both the limited capability for work-related activity element and (because you are caring for a disabled person) the carer element of UC, you get the limited capability for work-related activity element, but not the carer element. (If you are entitled to the limited capability for work element, you get the carer element instead.)

Examples

Terry is entitled to UC, including the limited capability for work-related activity element. He is joined by his partner Julie, who was on employment and support allowance before 3 April 2017. Terry and Julie get just the limited capability for work-related activity element, even though Julie is entitled to the limited capability for work element.

Olive is entitled to UC. Olive has limited capability for work-related activity, and is also a carer for her disabled father Stanley. Olive’s UC award includes the limited capability for work-related activity element, but not the carer element. If Olive was claiming UC with a partner who was caring for Stanley, then the carer element could be included as well.

When is a work capability element included?

Usually you have to wait for a period of time before a work capability element is included in your UC. Under regulation 28 of the Universal Credit Regulations 2013, this period of time is called the ‘relevant period’ and is three months long. Once you have served the three month relevant period, the element is included in your next UC monthly assessment period.

The three months usually start with the date on which you provide medical evidence of your limited capability. Medical evidence is a ‘self-certificate’ for the first seven days of illness, followed by a medical certificate from your doctor. Official guidance at paragraph F5031 of Chapter F5  Advice for Decision Making says that your ‘self-certificate’ can include you telling UC that you are unwell.

If you are entitled to disability living allowance or personal independence payment and have been earning at least the rate of the full national minimum wage for a 16 hour week, the three months start with the first day or your UC award or, if later, the day on which you asked for a work capability element to be included in your UC.

In certain circumstances you a work capability element can be included straight away, i.e. without you having to wait three months. This applies where:

  • you have restarted UC following stopping being a member of a couple or becoming a member of a couple and were getting a work capability element, or
  • within the previous 6 months before the start of your current award of UC, an earlier award of UC stopped because your income was too higher and you were getting a work capability element, or
  • you are terminally ill, or
  • you are entitled to contributory employment and support allowance that includes a support component or work-related activity component, or were so entitled before getting UC but your employment and support allowance has ceased because you have been in the work-related activity group for 52 weeks.

If you are transferring from ESA to UC, special transitional rules apply – see What if you transfer from ESA to UC?

Your ‘responsibilities’ for UC

When you claim UC, you have certain ‘responsibilities’ that you must fulfil in order to continue to get the full amount of your award. These ‘responsibilities’ can include requirements about things like attending interviews, training and other ‘work-related requirements’. These are usually included in the claimant commitment that you have to sign in order to be entitled to UC.

What can you be required to do?

What work-related activities can be applied to you depends on whether you have limited capability for work and work-related activity, just limited capability for work, or are not regarded as having any limited capability at all.

If you are regarded as not having carried out your work-related requirements, and are not regarded as having good reason for that, you will incur a sanction i.e. a reduction in your UC. For more information on UC and sanctions, see the Ask CPAG section on Avoiding and Challenging Universal Credit Sanctions.

If you have limited capability for work and work-related activity

If you have limited capability for work and work-related activity (i.e. you are in the support group for UC) no work-related requirements can be imposed on you at all. The rule about this is at section 19(2)(a) of the Welfare Reform Act 2012. Your responsibilities are limited to ensuring you do things like correctly reporting changes in your circumstances.

There are certain other circumstances in which no work-related requirements can be imposed on you, in particular where you are a carer, are pregnant or have a child aged under 1.

If you have just limited capability for work

If you have just limited capability for work (i.e. you are in the work-related activity group for UC), some work-related requirements can be imposed on you. The rule about his is at section 21(1)(a) of the Welfare Reform Act 2012. Your work-related requirements are limited to:

  • attending work-focused interviews with your UC work coach;
  • undertaking ‘work preparation’ such as undertaking training or work experience, or taking part in a ‘work-focused health-related assessment’ with a DWP healthcare professional.

You cannot be required to undertake work search or to be available for work.

There are certain other circumstances in which your work-related requirements are limited to attending interviews and work preparation, in particular if you have a child aged between 1 and 4, and in some circumstances where you are a foster parent of an older child.

If you do not have any limited capability

If the DWP do not regard you as having any limited capability, then depending on your other circumstances your responsibilities might include not only those in the bullets above, but also ‘work search’ and ‘work availability’ where you can be required to look for paid work and be ready and willing to take up work immediately.  In this situation, you are regarded as being subject to ‘all work-related requirements’. The rule about this is at section 22 of the Welfare Reform Act 2012.

What if all work-related requirements apply?

Because you must usually pass the WCA in order to be regarded as having some limited capability, you may find that the DWP apply all work-related to requirements to you even though you are unwell, in the following situations:

  • you are waiting for the WCA to be applied to you or for a decision on the outcome of the WCA; or
  • you are challenging a decision that you fail the WCA.

In these situations, you can tell your UC work coach that you are unwell and ask that they use their discretion to modify the requirements applied to you whilst the WCA is considered or your challenge is being decided.

Under the rules in regulation 99 of the Universal Credit Regulations 2013, if you declare that you are unfit for work you must not have a work search or work availability requirement imposed on you for 14 days. This can apply to you twice in a 12 month period. The first 7 days are usually covered by your declaration to the DWP; but for the next seven days to apply you must submit a medical certificate from your doctor. This 14 day period can be extended, at the DWP’s discretion, if it would be ‘unreasonable’ to impose work search and work availability requirements on you.

Under regulation 95 of the Universal Credit Regulations 2013, using DWP discretion you can be regarded as having taken ‘all reasonable action’ regarding a work search requirement even though you have not searched for work for as long as required. Under regulation 97 of the Universal Credit regulations, using DWP discretion you can put limitations on your work search and work availability, as long as they are reasonable in the light of your ‘physical or mental impairment’.

The work allowance

If you have earnings from work, the DWP consider whether to apply a ‘work allowance’ when calculating your UC.

But, under regulation 22 of the Universal Credit Regulations 2013, a work allowance only applies if you have a child, and/or you have limited capability for work. So having limited capability for work is one of the circumstances in which a work allowance is applied to your earnings.

If a work allowance does apply, all your earnings are ignored if they are below the level of the work allowance. If your earnings exceed the work allowance, only 63 per cent of the excess earnings are taken into account as your income. The level of the work allowance depends on whether your UC includes a housing element. If your UC does include a housing element, the work allowance is £192 per month; if your UC does not include a housing element, the work allowance is £397 per month.

The DWP will not regard you as having limited capability for work until you as have passed the WCA.  

The law is not very clear on whether you can then also be regarded as having limited capability for work in the period whilst you were waiting for the WCA to be decided. The intention seems to be that your universal credit award is ‘superseded’ and you are regarded as having had limited capability for work only from the time when you would have been able to have a work capability element included. This usually means from three months after you first notified being ill  - see When is a work capability element included? above. The relevant rule for this is at regulation 35(9)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance (Decisions and Appeals) Regulations 2013.

The benefit cap

If you entitlement from specified benefits is over a certain threshold level, your UC can be reduced or ‘capped’ to bring your entitlement back down to the threshold.

However, if you are entitled to the limited capability for work and work related activity element in your UC (i.e. you are in the support group for UC) the cap cannot be applied to you, even if your entitlement exceeds the threshold.

Usually you must serve a three month ‘relevant period’ before the element can be included in your UC  - see When is a work capability element included? above. Once the DWP have decided under the WCA that you have limited capability for work and work-related activity, your UC is ‘superseded’ so that you are entitled to the element from the end of the ‘relevant period’. The rule for this is at regulation 35(9)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance (Decisions and Appeals) Regulations 2013.

If you were already getting the limited capability for work element in your UC, but are then re-assessed as also having limited capability for work-related activity (i.e. you are placed in the support group), there is no ‘relevant period’ before the limited capability for work and work-related activity element can be included. In that case, your UC is ‘superseded’ so that you are entitled to the element either from the beginning of the monthly UC assessment period in which you reported that your condition had worsened or, if you did not report the change, from the assessment period in which the DWP awarding you’re the element was made. The rule for this is at regulation 35(9)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance (Decisions and Appeals) Regulations 2013.

If you are aged 16 or 17

Usually, you must be aged at least 18 in order to claim UC. However, in certain circumstances you can claim if you are aged 16 or 17. One of these circumstances is where you have limited capability.

Specifically, under regulation 8 of the Universal Credit Regulations 2013, you can claim if you are aged 16 or 17 and:

  • you have limited capability for work i.e. you have passed the WCA for UC; or
  • you are waiting to be assessed under the WCA and have submitted a medical certificate from your doctor stating that you are not fit for work.

If you are a disabled student

There is a general rule that you cannot get UC if you are ‘receiving education’. But there are a number of exceptions to the general rule. One of those is where you are a disabled student, and satisfy the following requirements (set out in regulation 14 of the Universal Credit Regulations 2013):

  • you get attendance allowance, disability living allowance or personal independence payment, and
  • you are assessed as having limited capability for work.

So to be entitled to UC as a disabled student you not only have to be getting one of the disability benefits but must also have passed the WCA i.e. have been assessed as having limited capability for work.

This requirement can cause serious problems, as you are not treated as having limited capability for work just because you are ill and have sent in a medical certificate, and/or you have asked the DWP to assess you under the WCA. That can mean that the DWP decide that because you have not actually passed the WCA, you cannot be entitled to UC as a disabled student, even though you have not actually had a chance to pass the WCA. So if for example you want to start studying and still get UC, this will not be possible unless you already have been assessed as having limited capability for work.

Some disabled students are not adversely affected. For example, if you have already passed the WCA either for UC or contributory ESA you should be regarded as having limited capability for work. This should also apply where you have already passed the WCA and get income-related employment and support allowance (ESA) and then transfer from ESA to UC (see What if you transfer from ESA to UC?). But remember that in any case the DWP can still reassess you under the WCA at any time, to decide if you still have limited capability for work.