Assessing capability for work

Legislation
Guidance
Case law

The rules for the work capability assessment (WCA), limited capability for work (LCW) and limited capability for work and work-related activity (LCWRA) and elements payable in respect of LCW or LCWRA are set out in the Universal Credit Regulations 2013 (SI.No.376/2013).

NB: See below for equivalent legislation in Northern Ireland.

Work capability assessment	Regulation 41 of SI.No.376/2013	Sets out when a WCA can be carried out.
	Regulation 42 of SI.No.376/2013	Sets out how to assess functions in relation to a prosthesis, aids and appliances and medical treatment.
	Regulation 43 of SI.No.376/2013	Sets out the information requirement for claimants and consequences of failing to comply without good reason.
	Regulation 44 of SI.No.376/2013	Sets out requirements relating to attending or submitting to a medical examination and consequences of failing to comply without good reason.
Limited capability for work assessment	Regulation 39 of SI.No.376/2013	Sets out general conditions for establishing LCW based upon the result of a WCA or being treated as having LCW.
	Schedule 6 to SI.No.376/2013	Sets out the activities and descriptors for assessing if a claimant has LCW.
	Schedule 8 to SI.No.376/2013	Sets out circumstances when a claimant can be treated as having LCW, including substantial risk.
Limited capability for work and work-related activity assessment	Regulation 40 of SI.No.376/2013	Sets out general conditions for establishing LCWRA based upon the result of a WCA or being treated as having LCWRA.
	Schedule 7 to SI.No.376/2013	Sets out the activities and descriptors for assessing if a claimant has LCWRA.
Limited capability for work and work-related activity element	Section 12 of the Welfare Reform Act 2012 and regulation 27 of SI.No.376/2013	Set out that a LCWRA element can be included in the calculation of universal credit
	Schedule 9 to SI.No.376/2013	Sets out circumstances when a claimant can be treated as having LCWRA, including in cases of substantial risk and terminal illness.
	Regulation 28 of SI.No.376/2013	Sets out the period for which the LCWRA element may not be included in an award of universal credit.
	Regulation 37 of SI.No.376/2013	Sets out rules for the run-on of a LCWRA element in couple claims after the death of the eligible person.
Limited capability for work element	Paragraph 8 of schedule 2 to SI.No.204/2017	Makes savings provisions to include the LCW element after 3 April 2017 in specified cases.

In Northern Ireland, the Welfare Reform (Northern Ireland) Order 2015 together with SR.No.216/2016 and SR.No.146/2017 make provision equivalent to that in Great Britain relating to assessing capability for work.

Further explanation of the legislation is set out in guidance. Please note, however, guidance is not binding and cannot override the legislation.

Advice for decision making	Chapter F5	Includes guidance on the LCWRA element and LCW element where it is still payable.
Advice for decision making	Chapter G1	Includes guidance on the WCA including on ‘good reason for failing to comply with information requirements or the requirement to attend a medical examination.
Advice for decision making	Chapter G2	Provides guidance on LCW.
Advice for decision making	Chapter G3	Provides guidance on LCWRA.
DWP guidance from parliament.uk	Treated as having LCW	Sets out guidance for DWP staff on when a claimant can be treated as having LCW.
DWP guidance from parliament.uk	Treated as having LCWRA and day 1 WCA referrals	Sets out guidance for DWP staff on when a claimant can be treated as having LCWRA.
DWP guidance from parliament.uk	Immediate WCA referrals	Sets out guidance for DWP staff on when immediate referral for a WCA must be made.
DWP guidance from parliament.uk	Medical evidence including fit notes	Sets out guidance including on self-certification and what is acceptable medical evidence of incapability for work.
DWP guidance from parliament.uk	Health conditions and disabilities - day 1 to day 29	Sets out guidance for DWP staff on short periods of sickness and issues around the WCA.
DWP guidance from parliament.uk	Work capability assessments	Sets out guidance for DWP staff on the WCA referral and assessment process.
DWP guidance from parliament.uk	WCA outcomes	Sets out guidance for DWP staff on WCA determinations including reconsiderations, migration from ESA, and impact of decision on the claimant’s labour market regime.
DWP guidance from parliament.uk	Severe conditions	Sets out guidance for DWP staff on the severe conditions criteria that means a claimant with LCWRA no longer needs to have a WCA.

Case law provides further interpretation of the legislation and establishes legal precedent.

Upper Tribunal	[2022] UKUT 117 (AAC)	An old style ESA claimant who claimed universal credit six months after ESA ended was entitled to receive LCWRA element immediately on account of previous determination of LCWRA and national insurance credits entitlement More information: Read the rightsnet summary
Court of Appeal	[2021] NICA 46	Court of Appeal in Northern Ireland overturns High Court judgment that differential treatment of claimants under terminal illness provisions is unlawful More information: Read the rightsnet summary
Upper Tribunal	[2021] UKUT 47 (AAC)	Consideration of ‘substantial risk’ arising from claimant being found fit for work includes travel to and from jobcentre and job interviews, as well as to and from work More information: Read the rightsnet summary
High Court	[2020] NIQB 53	High Court holds that special rules for terminal illness, in case where claimant cannot demonstrate their death can be reasonably expected within six months, are ‘discriminatory’ and ‘manifestly without reasonable foundation’ More information: Read the rightsnet summary
Upper Tribunal	[2020] UKUT 215 (AAC)	ESA case law relating to requirement for DWP to provide tribunals with evidence of work-related activity available in area where claimant lives applies equally to universal credit More information: Read the rightsnet summary