KS v The Secretary of State for Work and Pensions

For the purposes of determining when the three-month waiting period for the LCWRA element of Universal Credit begins, Universal Credit Regulations 2013 do not exclude a valid self-certification. Where it would be unreasonable to require a claimant to provide a Fit Note, other sufficient evidence may satisfy the medical-evidence requirements. It may be unreasonable to insist on a prescribed medical certificate where the claimant has promptly reported a health condition, explained its effect on work, raised a reasonable query about the need for a Fit Note, and received no response. A later Fit Note may, together with the claimant’s earlier report and relevant benefit evidence, bridge the evidential gap and establish the earlier effective date.

The claimant reported on 17 April 2021 that she had health conditions affecting her ability to work and that she cared for her disabled daughter. She asked whether a Fit Note was required but received no response. On 24 February 2022 she provided a Fit Note dated 15 April 2021.

The Secretary of State decided that the LCWRA element became effective from 24 February 2022. The First-tier Tribunal dismissed the claimant’s appeal on 5 September 2023. Permission to appeal was granted on the question whether the relevant three-month period could begin with the claimant’s earlier journal entry and self-certification. The Upper Tribunal considered the proper application of the Universal Credit Regulations 2013 and the Social Security (Medical Evidence) Regulations 1976.

The appeal was allowed. The First-tier Tribunal’s decision involved a material error of law and was set aside. The decision was re-made under section 12 of the Tribunals, Courts and Enforcement Act 2007.

1. Regulation 28(2)(b) of the Universal Credit Regulations 2013 requires the relevant three-month period to begin with the first day on which the claimant provides evidence of limited capability for work in accordance with the medical-evidence regulations. It does not preclude an initial self-certification under regulation 5 from starting that period.

2. Although regulation 2(1) of the Social Security (Medical Evidence) Regulations 1976 ordinarily requires a healthcare professional’s statement in the prescribed form, that requirement is subject to regulation 2(1A). It was unreasonable to require the claimant to provide a Fit Note while her reasonable query about that requirement remained unanswered.

3. The claimant’s journal report of health problems affecting her ability to work and her receipt of PIP, together with the Fit Note later supplied, constituted sufficient other evidence under regulation 2(1A). The Fit Note, which related back to April 2021, bridged the gap between the initial self-certification and its later submission.

4. The relevant period therefore commenced on 17 April 2021. The Secretary of State’s decision of 10 November 2022 was set aside, and the claimant was found to have LCWRA with an effective date of 17 April 2021.

• Upper Tribunal (Administrative Appeals Chamber): Appeal allowed. The First-tier Tribunal’s decision of 5 September 2023 was set aside for material error of law, and the decision was re-made under section 12 of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Social Entitlement Chamber): Appeal dismissed and the Secretary of State’s decision confirmed.
• Secretary of State: On 10 November 2022, decided that the LCWRA element was effective from 24 February 2022. Mandatory reconsideration on 9 March 2023 confirmed that decision.