[2025] UKUT 035 (AAC)

Policy background

During the passage of the 2012 Act, the Government announced that existing benefit claimants who are migrated to UC by the Government who would otherwise have an initial lower entitlement to UC than they had to their existing benefits at the point they make their UC claim will be Transitionally Protected. To this end, regulation 55 of the 2014 Regulations establishes how Transitional Protection will be applied to the UC award via the calculation of a Transitional Element (TE) in UC.

The announced policy has also always been that TE will subsequently be reduced by an increase in a UC element already in award or the award of a new UC element. Although this is the case, an issue has been identified in the legislative structure that where a UC claimant:

From a policy perspective, it has always been the intention that a reassessment from LCW to LCWRA be treated as an increase in the claimant’s health-related element and TE should therefore be reduced by the amount of the difference between the LCW and the LCWRA.

However, the issue identified in the legislative structure means that LCW and the LCWRA are two distinctly different elements. They are not two rates of the same element and therefore, where a claimant’s health deteriorates and their work capability is reassessed, they do not experience an “increase” in their health-related element. Instead, the LCW is terminated and the LCWRA is awarded as a new element.