GEA v The Secretary of State for Work and Pensions (UC): [2026] UKUT 312 (AAC)
Upper Tribunal Administrative Appeals Chamber decision of Judge Butler on 07 August 2026.
Read the full decision in .
Judicial Summary
GEA appealed against DWP’s decision to include the LCWRA element in her universal credit (“UC”) award from 03 September 2021. The First-tier Tribunal decided:
(1) GEA had provided medical evidence on 03 June 2021 in connection with her request to be assessed in terms of her capability for work. Applying the three-month relevant period to her under regulation 28(2)(b) of the Universal Credit Regulations 2013 (“the 2013 Regulations”), she was entitled to the LCWRA element in her award from 03 September 2021;
(2) However, applying regulation 41(2) and (3) of the 2013 Regulations, GEA’s earnings exceeded the relevant threshold for the assessment period from 03 November 2021 to 02 December 2021, and she did not satisfy any of the exceptions in regulation 41(2)(a) and (b). She was therefore not entitled to the LCWRA element during that assessment period; and
(3) As a result, the FTT must apply a second three-month relevant period under regulation 28(2)(b) from 03 December 2021 onwards. GEA was therefore not entitled to the LCWRA element again until 03 March 2022.
The Upper Tribunal decided that the First-tier Tribunal (“FTT”) made a material error of law in concluding that GEA’s earnings exceeded the relevant threshold in regulation 41(3) of the 2013 Regulations. The FTT should have calculated GEA’s monthly earnings using the averaging provisions in regulation 90(6)(b)(ii), because her earnings fluctuated and had no identifiable cycle. Had it done so, the FTT would have decided that GEA’s monthly earnings fell below the relevant threshold and regulation 41(2) did not apply.
The Upper Tribunal also decided that, had regulation 41(2) applied to GEA, the FTT’s approach about the start date for the LCWRA element would not have been consistent with regulation 28 (see paragraph 91).
The Upper Tribunal allowed GEA’s appeal and remade the First-tier Tribunal’s decision including the LCWRA element in her award from 03 September 2021.
As the First-tier Tribunal requested guidance about how the provisions work, the discussion in the decision also addresses:
- the distinction between an assessment regarding limited capability for work (“LCW”) and a determination made on the basis of it (paragraphs 35 to 37);
- the operation and effects of regulation 41(2) of the 2013 Regulations, including where an assessment about LCW has started (paragraphs 43 to 48, 55 to 61);
- the relationship between regulation 41 and the provisions in regulation 28 identifying the period before the LCWRA element is included in a UC award (paragraphs 80 to 90); and
- whether regulation 28(2)(b) relates to the date on which a claimant first provides DWP with evidence of LCW or could relate to an earlier date mentioned in that evidence (paragraphs 95 to 97).