The Limited Capability for Work Element

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1 Benefits Bulletin Registered Charity Winter 2016/2017 Expected Benefit Changes April 2017 Here is a summary of changes expected in April We must emphasise that many of the changes amount at this stage to either Governmental announcements, or policy proposals, and much of the legislative detail contained in statutory instruments is still awaited. Payments for Children Limited Under Universal Credit and Child Tax Credit payments for children will be limited to the first two. For Child Tax Credit, the child element will not be payable in respect of a third child or subsequent children born on or after 6th April For Universal Credit this restriction applies regardless of when the child is born. Exceptions will apply to the birth of a third, or fourth, child where there are special circumstances. These changes are still to be confirmed in secondary legislation. From April 2017, the family element in tax credits and the higher first child element in Universal Credit will no longer be awarded when a first child is born. This also applies to families with children making their first claim for Universal Credit. Announced in the Summer Budget of The Limited Capability for Work Element From 1st April new claims for Employment and Support Allowance and Universal Credit where the claimant is put into the work-related activity group will not include the work-related activity component or element. They will receive the same rate of benefit as those receiving Jobseeker s Allowance. Bereavement Support Payment The current set of bereavement benefits and payments will be replaced with a single system of Bereavement Support Payments. These will consist of a lump sum of 2,500 plus 100 a month for up to 18 months for those without children and a 3,500 lump sum payment plus 350 a month for up to 18 months for those with children. These changes are due to come into effect on 6th April Permitted Work 52-Week Time Limit Announced in the Budget of 2016, and still awaiting the secondary legislation to designate a day for its introduction, the 52-week time limit on permitted work at the higher limit is to be removed from April Universal Credit Earnings Taper Currently fixed at 65%, the Chancellor Philip Hammond announced on 23rd November 2016 that the Universal Credit Earnings Taper will be reduced to 63%, from April In practice, this means that for every 1 earned above any applicable work allowance the Universal Credit award is reduced by 63p rather than 65p. 1 Advice Publications Training

2 BenefitsBulletin Winter 2016/2017 CG/838/2015 Carer s Allowance full-time courses and temporary interruptions Someone attending a full-time University course decides to take a year out to care for their severely disabled son. Everything s in place: the child receives a qualifying benefit (middle or higher rate of Disability Living Allowance); the care the parent gives is regular and substantial, and all the other conditions of entitlement are satisfied Except one. You ve probably guessed it already. The claim for Carers Allowance in these circumstances is turned down on the ground that the parent is receiving full-time education of 21 hours or more a week. The rationale behind the rule is that it is not possible to be a full-time carer and a full-time student at one and the same time. Not enough hours in the week, apparently. More specifically, in this case, the parent was considered to be in full-time education throughout any vacation or any temporary interruption including the year she chose to take out to care for her disabled son. The words any temporary interruption are to be found in regulation 5(3) of the Social Security (Carer s Allowance) Regulations 1976, and their meaning has remained unchallenged for many years. Unchallenged, that is, until the appellant in CG/838/2015 came along and sought clarification on it. The issue before Judge Mitchell at the Upper Tribunal was this: what constitutes a temporary interruption to attendance on a course? Judge Mitchell looked closely at regulation 5 and decided to make a distinction a distinction that regulation 5(3) really calls for. It is the difference between an interruption in attendance, during which time a person can no longer be considered to be studying full-time, and a temporary interruption in attendance, during which time a person can be considered quite reasonably to be still studying full-time. Thus, there are now two types of interruption to consider when looking at regulation 5(3). This particular first-tier tribunal had misdirected itself by believing there was only one that any interruption during a full-time course of education was always a temporary interruption. The DWP supported the case, and even offered some guidance on what might constitute an interruption that was more than temporary, including a period of interruption of at least one academic year, during which time the student does not participate in any course activities, and thus will be entitled to Carer s Allowance. 2 Advice Publications Training

3 April 2017 April 2018 BENEFITS AND CREDITS AT A GLANCE MEANS-TESTED BENEFITS AND CREDITS Income Support, income-related Employment and Support Allowance and income-based Jobseeker s Allowance figures per week Capital Limits Upper limit 16,000 Lower limit 6,000 Lower limit care homes 10,000 (tariff income 1 pw per 250 or part 250) Personal allowances Single Age Age main phase ESA Age 25 or over Lone parent Under Age 18 or over Couples Under 18 depends on circumstances Both aged 18 or over Components ESA Work-related activity component (pre April 2017 claims) Support component Premiums Disability not payable in ESA Single Couple Enhanced disability Single Couple Severe disability Carer Pensioner Single not payable in IS Couple For ESA reduce by the amount of component awarded Housing costs 3.12% this may change Non-dependant deductions same as HB Disregarded earnings Single 5.00 Couple Disability Carer Lone parent Firefi ghter/lifeboat/coastguard/ta Permitted work lower limit higher limit (not IS) Councillor's Allowance Other disregarded income War Pensions/Armed Forces Scheme Widowed Mother s/parent s Allowance Student loan Income from boarder (plus 50% of remainder) Income from subtenant Welfare Benefi ts Unit Charity number:

4 April April 2018 figures per week Capital limits Housing Benefit Under Pension Credit qualifying age Upper limit 16,000 Lower limit 6,000 (tariff income 1 pw per 250 or part 250) Over Pension Credit qualifying age Upper limit 16,000 Lower limit 10,000 (tariff income 1 pw per 500 or part 500) Applicable amounts same as Income Support/ESA except: Pensioner Single age under Couple age under Single age 65 and over Couple age 65 and over Dependent children Allowance for each child Premiums Family (pre May 2016 claims) Disabled child Enhanced disability (child) Disregarded earnings same as Employment and Support Allowance except: Lone parent Working 16hrs/30hrs Childcare costs One child (max) Two or more children (max) Incapable of work prior to Pension Credit qualifying age or aged Other disregarded income Maintenance paid for an adult War Pensions/Armed Forces Scheme Widowed Mother s/parent s Allowance Student loan Income from boarder (plus 50% of remainder) Income from subtenant Fuel deductions Heating Hot water 3.35 Lighting 2.30 Cooking 3.35 All fuel One room Meals deductions Three meals per day Less than three meals a day Breakfast only 3.35 Non-dependant deductions Age 18 and working 16+ hours pw gross income less than gross income gross income gross income gross income gross income or over Others age 18 or over unless disregarded Council Tax Reduction Non-dependant deductions Age 18 and working 16+ hours pw gross income less than gross income gross income gross income or over Others age 18 or over unless disregarded 3.80 Child Tax Credit figures per annum Threshold 16,105 (entitled to CTC but not WTC) Elements Family (pre April 2017 claims) 545 Child (per child) 2,780 Disability (per child) 3,175 Severe disability (per child) 1,290

5 April April 2018 Working Tax Credit figures per annum unless otherwise stated Threshold 6,420 Elements Basic 1,960 Couples and lone parents 2, hour 810 Disability 3,000 Severe disability 1,290 Childcare 70% of weekly cost for 1 child up to % of weekly cost for 2 or more children up to Capital limits Pension Credit No upper limit Lower limit 10,000 (deemed income 1 pw per 500 or part 500) Standard minimum guarantee Single Couple Additional amounts Severe disability Carer Housing costs 3.12% this may change Non-dependant deductions same as HB Savings credit threshold Single Couple Savings credit Single max Couple max Disregarded earnings Single 5.00 Couple Carer, age 80+, incapable of work prior to Pension Credit qualifying age, lone parent Councillor's Allowance Other disregarded income War Pensions/Armed Forces Scheme Widowed Mother s/parent s Allowance Income from boarders (plus 50% of remainder) Income from sub-tenant figures per month Capital limits Universal Credit Upper limit 16,000 Lower limit 6,000 Lower limit care homes 10,000 (yield income 4.35 per 250 or part 250) Allowances Single age under Single age 25 or over Couple both under Couple either 25 or over Elements Eldest or only child (pre April 2017 claims) Child (per child max 2 for claims made after April 2017) Disabled child Lower rate Higher rate Limited capability for work Limited capability for work related activity Carer Childcare: maximum One child 85% of cost up to Two or more children 85% of cost up to 1, Housing cost contribution Age 21 and over Eligible housing costs Mortgage interest at 3.12% or rent Work Allowances Responsible for child/limited capability for work Lower: with housing costs Higher: without housing costs

6 April April 2018 NON-MEANS-TESTED BENEFITS Attendance Allowance Lower rate Higher rate Bereavement Benefits Bereavement payment (lump sum) 2,000 Bereavement Allowance (up to) Widowed Parent s Allowance Carer s Allowance Adult dependant Earnings threshold Child Benefit Eldest or only child Each other child Child dependant additions Eldest or only child 8.00 Each other child Disability Living Allowance Care component Lower rate Middle rate Higher rate Mobility component Lower rate Higher rate Employment and Support Allowance Basic allowance Age Age main phase Age 25 or over Work-related activity component (pre April 2017 claims) Support component Permitted work higher limit lower limit Councillor's Allowance Guardian s Allowance Incapacity Benefit Adult dependant Age additions under under Disregarded earnings see Employment and Support Allowance Industrial Injuries (100%) Jobseeker s Allowance Age Age 25 or over Maternity Allowance (up to) Earnings threshold Personal Independence Payment Daily Living Standard Enhanced Mobility Standard Enhanced Severe Disablement Allowance Adult dependant Age additions under inclusive 6.25 Disregarded earnings - see Employment and Support Allowance State Pension State Pension (a) State Pension Category A or B State Pension Category B or D Adult dependant Statutory Adoption, Maternity, Paternity and Shared Parental Pay Earnings threshold Statutory Sick Pay Earnings threshold (a) For those reaching pension age on/after 6 April National Minimum Wage per hour Age 25 or over 7.50 Age Age Age Apprentice rate 3.50

7 BenefitsBulletin Winter 2016/2017 Moving from Employment and Support Allowance to Universal Credit With the roll-out of Universal Credit (UC) full-service, and abolition of Income Support, income-based Jobseekers Allowance, income-related Employment and Support Allowance, Working Tax Credit, Child Tax Credit and Housing Benefit (the legacy benefits ), more and more people are finding that they have to make a claim for UC. Contributory benefits are not abolished and contributory Employment and Support Allowance and contributory Jobseekers Allowance can continue with UC available as an income-based top-up. When do you have to claim UC? If you live in an area which has not yet moved to full-service and gateway conditions apply, you can only access UC if you meet those gateway conditions, for example be single and either unemployed or with low earnings. Those that do not meet these gateway conditions cannot get UC and can still make a new claim for any legacy benefit. If you do live in a full-service area, no gateway conditions apply and you need to claim UC as and when you need to make a new claim for a working-age means-tested benefit. You will not be able to make a new claim for Income Support, incomerelated ESA, income-based JSA, Housing Benefit, Child Tax Credit or Working Tax Credit. This means that, if you have a change of circumstances requiring a new claim, the only means-tested benefit available to claim is UC and, when you do claim UC, your entitlement to any legacy benefit will end. Example: Hannah lives in Harrogate in her parent s home and receives income-related ESA. In July 2017 she is allocated her own tenancy and needs help to pay her rent. She cannot claim Housing Benefit, as no new claims are possible in a full-service area. This means that she will have to claim UC for help to pay her rent and her incomerelated ESA will end. What if you are getting ESA when you need to claim UC? For UC, you are not generally treated as having limited capability for work until you have undergone an assessment. If you are assessed as having limited capability for work or work-related activity, there is a 3 month wait before you become entitled to this element with your UC. If you are getting ESA when you have to make a claim for UC, there are rules which can help you to get the limited capability for work or limited capability for work-related activity element with your UC without having to wait. You must be getting ESA on the date that you make a claim for UC. If you have limited capability for work and/or limited capability for work-related activity for ESA you are treated as having limited capability for work or limited capability for work-related activity for the purposes of your UC. If you have not yet had an assessment of limited capability for work and limited capability for work-related activity for ESA and are still in the assessment period, the waiting period before which the appropriate element is included with your UC is 13 weeks from the start of the ESA assessment period. If your entitlement to ESA ended before you make your claim for UC, you have to wait until you have had an assessment under the UC claim. Example: Hannah receives incomerelated ESA, with the work-related activity component, when she moves into her first tenancy in Harrogate. She is unable to make a new claim for Housing Benefit and makes a claim for UC for help to pay her rent. As she is in receipt of ESA on the date that she makes her claim for UC, she is treated as having limited capability for work without further assessment and the limited capability for work element should be included from the start of her UC award. 7 Advice Publications Training

8 BenefitsBulletin Winter 2016/2017 CPIP/2685/2016 Personal Independence Payment descriptor 9 engaging socially and engaging with other people face to face. A most peculiar problem with the PIP regulations was identified in 2015 by Judge Mark in the case AM v SSWP (PIP) [2015] UKUT 215 (AAC). It has been picked up and clarified by another Judge, Judge Bano, in an Upper Tribunal decision CPIP/2685/2016, dealing with descriptor 9: engaging with people face to face. It was decided on 24th November Judge Mark first noted that in paragraph 1 of Schedule 1 to the regulations the paragraph that lists the meanings of the words that appear in the Schedule the words engage socially, which are given a specific meaning in that paragraph, don t actually make an appearance anywhere thereafter. So why give the definition of words that don t appear in the Schedule? More specifically, why give the definition of words that don t appear in descriptor 9 the descriptor that allocates points under engaging with other people face to face? You might say, with a great deal of common sense, that, actually, both sets of words are synonymous. They mean the same thing. Why quibble any further? Our Upper Tribunal judges need more precision than that. After all, engaging with people face to face, at first glance, appears to encompass far more ground than engaging socially. Judge Bano, in the later decision, clarifies matters; at least, he does so, for the time being. Let s look at the paragraph 1 definition of to engage socially. It means: Interact with others in a contextually and socially appropriate manner Understand body language Establish relationships He takes this definition and applies it to the entire descriptor, saying: I therefore consider that the whole of PIP Activity 9 is concerned with a claimant s ability to engage with other people face to face in social situations. It would follow that in all cases in which Activity 9 is at issue decision makers should apply the definition of engage socially in Schedule 1 and should consider a claimant s ability to interact with others in a contextually and socially appropriate manner, the claimant s ability to understand body language, and the claimant s ability to establish relationships in a social context. 8 Advice Publications Training

9 BenefitsBulletin Winter 2016/2017 CPIP/2292/2016 mobility activity 2 and Regulation 4 of the PIP Regulations moving around within a reasonable time period/to an acceptable standard. Here is another interesting Upper Tribunal decision on the practical applications of Regulation 4 of the PIP Regs Regulation 4 and its paragraphs contains the four criteria for assessing which activity within a descriptor might apply to the appellant s circumstances. It also contains specific meanings for most of these. It has been very oddly put together, and, as a result, is causing a great deal of thoughtfulness within the profession. What are the four criteria? I m sure you ve heard of them. They are contained in paragraph (2A) of the regulation. Where an activity cannot be performed (a) safely, (b) to an acceptable standard, (c) repeatedly, or (d) within a reasonable time period, then points for that particular activity can be awarded. Only one of the four need be engaged for an award of points; two or more might be engaged if the facts of the case suggest they should. Perhaps more important are the contents of paragraph (4) of Regulation 4. These give specific meanings for three out of the four criteria. At this point, as these meanings are central to the problems being caused by the regulation, it is worth quoting the paragraph in full: (4) in this regulation safely means in a manner unlikely to cause harm to C or to another person either during or after completion of the activity; repeatedly means as often as the activity being assessed is reasonably required to be completed; reasonable time period means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person s ability to carry out the activity in question would normally take to complete that activity. As you can see, there is no specified meaning for an acceptable standard. So, bearing all this in mind, what happened in CPIP/2292/2016? It was decided by Judge Hemingway, on 2nd December The appellant had mobility problems so as to engage the physical mobility descriptors. The issue raised by the case was whether a relatively slow pace of walking which nevertheless amounts to walking within a reasonable time period and thus not a point-scorer by itself can be taken into account as one of a range of factors in considering whether a claimant is able to stand and then move to an acceptable standard. In other words, if you can t get points one way, can you get them in another with the same facts? Article continued on next page... Farewell to Jane and Richard We ve recently said goodbye to both Jane, our Administrator, and Richard, Welfare Rights Adviser. Thanks to both of them for their long service. Jane retired to her garden and Richard is moving on to pastures new. We wish them both well. 9 Advice Publications Training

10 BenefitsBulletin Winter 2016/2017 Judge Hemingway is quite clear in stating that sub-paragraph (2A)(b), the acceptable standard criterion, does not offer a lower threshold for an award of points under the physical mobility descriptors than the one outlined clearly in sub-paragraph (2A)(d), the reasonable time period criterion. That would be entirely inconsistent. Arguably, however, this may be going a step too far if it is suggesting that, among the range of factors to be taken into account in assessing whether a client scores points, walking difficulties not meeting one criterion the reasonable time period criterion should be excluded from another the acceptable standard criterion, while other factors may still apply. Maybe that is what Judge Hemingway is suggesting: paragraph (2A)(b) can only be engaged on its own terms. What caused a headache for Judge Hemingway ultimately boils down to two broader issues: how the meanings specified in paragraph (4) relate to the criteria in paragraph (2A), and how the criteria in paragraph (2A) relate to each other. Sub-paragraph (b) in paragraph (2A) is where the problem lies, as Judge Hemingway noted. Sub-paragraph (b) the acceptable standard criterion has the potential to encompass the meanings of the other three, while none of the other three encompass the meanings of the others, except (b). This is partly acknowledged in the commentary to the regulation in the most recent edition of the Sweet and Maxwell law book (what used to be fondly known to the profession in the good old days as Bonner and Mesher ). This states that where the issue of, for example, repeatedly mobilising arises, this will bring into question the claimant s need for rest periods as to both frequency and duration and will then link with whether the claimant can be said to be achieving movement to an acceptable standard. It is possible, therefore, that paragraph (2A)(b) can be engaged via facts that do not quite meet the thresholds of the other three criteria but which, together, amount to not being able to perform an activity to an acceptable standard, contrary to what Judge Hemingway suggests. The other alternative, of course, is to engage paragraph (2A)(b) on its own terms, irrespective of the other criteria. What compounds the difficulties of interpretation is the absence of a specific meaning for an acceptable standard in paragraph (4). The presence of a definition would differentiate it and exclude the others from its ambit. On the other hand, the absence of a definition gives advisers full play to work it for the benefit of their clients. In fact, it is almost as if the acceptable standard criterion should have appeared in the initial sentence of paragraph (2A). This, however, shows as a disadvantage for claimants, as particularities of meaning might not then be available, in the sense that points could not be scored under the acceptable standard criterion, but only under the others. We d only have three criteria, not four. But what does all this amount to, if anything? If the Regulation is as poorly drafted as we suggest, it can only mean more interesting case-law, for years to come... Welfare Benefits Unit Advice Line Monday Friday, 10am 1pm (North Yorkshire and York only) Please do not give this number to members of the public BenefitsBulletin is compiled by the Welfare Benefits Unit, 17 Priory Street, York YO1 6ET Registered Charity Advice Publications Training