The Upper Tribunal allowed a Universal Credit appeal in which one assessment period of earnings had been treated as interrupting entitlement to the limited capability for work and work-related activity element.
The calculation error
The First-tier Tribunal concluded that the claimant’s earnings exceeded the relevant threshold during one assessment period. The Upper Tribunal held that the earnings fluctuated without an identifiable cycle and should have been calculated using the applicable averaging provision in regulation 90(6)(b)(ii) of the Universal Credit Regulations 2013.
Once averaged correctly, the monthly earnings fell below the relevant threshold. The restriction in regulation 41(2) therefore did not apply.
The interrupted waiting-period problem
The First-tier Tribunal had treated the disputed earnings period as creating a break and then imposed another three-month relevant period before the LCWRA element resumed. The Upper Tribunal also explained that this approach would not have been consistent with regulation 28, even if regulation 41(2) had applied.
The outcome
The appeal was allowed and the decision was remade. The claimant was entitled to the LCWRA element from 3 September 2021 onwards, rather than having it interrupted and restored only later.
What the decision does not mean
It does not establish that every variable payment must always be averaged or that earnings can never affect a work-capability assessment. The precise pattern of earnings, the relevant assessment periods and the statutory provisions must be identified in each case.
Black Sheep evidence lesson
Do not rely on a single payroll figure without reconstructing the calculation. Build a schedule showing each assessment period, gross and attributable earnings, payment dates, whether the pattern has an identifiable cycle, the threshold used and the regulation applied. A benefits appeal should expose the calculation method—not merely dispute the resulting amount.