CPAG judicial review project – early successes
As our Early Warning System has found increasingly in recent months, people are facing problems with how decisions are being made about their benefits. It’s vital that people have the right of appeal, and that decision-making is clear and fair, and we know this is not always the case. We launched our judicial review project 4 months ago to support advisers when their clients face these problems, and we have already seen some great successes.
Advisers can use any of the more than 30 judicial review pre-action protocol letters to help their clients resolve their benefit issues where there is no right of appeal, or the appeal process would be ineffective, without using a lawyer or going to court. The letters cover diverse issues from inappropriate universal credit conditionality to failure to provide a mandatory reconsideration decision.
In a short space of time, we’ve seen several positive outcomes from this approach.
Right to reside
Claire* applied for universal credit and was refused as she was found not to have the right to reside in the UK. Claire asked the DWP to look at this again by requesting a mandatory reconsideration of their decision. After 6 months Claire had still not received a mandatory reconsideration decision, which meant that she could not appeal.
Claire sought advice from Warrington Citizens Advice, and her advisor used the template ‘UC delay in providing MR decision' to challenge the delay. As a result, not only did the DWP send Claire a mandatory reconsideration decision, they also sent her a payment of £50 for avoidable delays.
Samantha, an adviser from Warrington Citizens Advice said: 'Thank you for your template regarding delays processing universal credit mandatory reconsideration decisions, which had the desired result of providing us with a written mandatory reconsideration outcome which we can now appeal, after nearly 6 months waiting and a conciliatory payment of £50 to the client for avoidable delays.'
National Insurance number application
Sanjana* is a Bangladeshi national with a young child and has indefinite leave to remain. She was getting universal credit, including help with her rent, until her husband Anik* came to join her and their child in the UK. Sanjana notified the DWP that her husband was now in the UK, and her universal credit stopped.
The DWP advised ‘we cannot pay you until Anik has a National Insurance number’ and, he ‘must apply for a National Insurance number’. Anik applied for a National Insurance number, as instructed.
Sanjana, Anik and their young child had no income at all for more than 3 months while they waited for Anik’s National Insurance number to be issued. Their home was at risk due to rent arrears and they were reliant on food banks.
An adviser at their local food bank contacted CPAG who sent one of our template letters challenging the failure to pay universal credit while Anik was waiting for his National Insurance number. This was sent on Wednesday at 5.10pm asking for a response by that Friday by 5pm, due the urgency of the situation and the unlawfulness of the failure to pay universal credit pending Anik’s National Insurance number.
The DWP responded on that Friday ‘we disagree with CPAG’s legal analysis’ but that Sanjana and Anik ‘will receive a payment today or early next week’.
On the Wednesday of the following week, Anik received his National Insurance number, and the family were paid backdated universal credit of over £2,500. This resolved the issue for Sanjana, Anik and their child.
But wider than that, the DWP also:
1. Updated their website to remove the misleading criteria ‘your National Insurance number’.
2. Updated their Advice for Decision Making (at ADM A2151) to make it clear that a claimant is eligible for universal credit as soon as their partner (who does not have a National Insurance number) has applied for one.
3. Sent an updated ‘operational instruction’ to all job centres to instruct them that they must help universal credit claimants to apply for a National Insurance number using a ‘dedicated form’ and sending it to a ‘dedicated inbox’ rather than telling claimants to make a separate application.
4. Offered us assurances that this will mean a National Insurance number is always received before the end of the claimant’s first assessment period, and we would expect the National Insurance number to be issued quickly enough to take advantage of an advance. (Please let us know if this is not the case by emailing email@example.com)
Carl* is claiming jobseeker’s allowance and has a learning disability. In November 2018 Carl received a letter from the DWP telling him he could not be paid because he had failed to attend an appointment at the Jobcentre. Carl requested a mandatory reconsideration of this decision as he had not been told about the appointment and so had not ‘failed to attend’.
Carl was suffering significant financial hardship as a result of not getting his jobseeker’s allowance payment. In April 2019 he contacted Citizens Advice Lewisham, which has two volunteer advisers who sent an adapted version of the ‘UC delay in providing MR decision’ template letter to challenge the delay and asked for a response within 7 working days.
Carl received a mandatory reconsideration decision within the 7 days, which accepted he had not been notified of the appointment and reinstated his jobseeker’s allowance from November 2018.
UC carer element
We’ve received numerous reports of failure to award the carer element of universal credit. For example, Kirsty* was the carer for her severely disabled husband Edward*, and received carer’s allowance. Kirsty was included in Edward’s employment support allowance claim. Edward sadly passed away.
Kirsty had to claim universal credit, and was awarded an 8-week run of carer’s allowance following Edward’s death.
Kristy’s universal credit did not however include the ‘carer element’. Her adviser contacted the DWP and was told Kirsty was not providing ‘regular and substantial care’ and she was not therefore eligible. What’s more, 100% of her carer’s allowance was deducted as ‘unearned income’ from her universal credit, so she did not see any of the benefit of it.
A Community Advice Officer at Caia Park Community Advice Service used the template ‘UC refusal of carer element in line with carers allowance run on after a death'.
The DWP responded 'we agree that the relevant legislative provisions are as set out in your letter… The Secretary of State agrees to review the decision taken in relation to the proposed claimant’s entitlement to universal credit… The Secretary of State will be reviewing guidance in this area and taking any steps necessary to improve decision making in similar cases'.
This resolved the issue for Kirsty and clarified it for other advisers and job centres, so that the question can now be resolved quickly by way of mandatory reconsideration (if not before).
Jill from Caia Park Community Advice Service says 'Thanks very much for your help. I find your service invaluable and have used it a number of times'.
*Names have been changed.