Universal credit (UC) claimants who suspect the DWP has made a mistake in their award and ask for a review are too often blocked by DWP error and failures in the system, a new report from Child Poverty Action Group (CPAG) shows.
Research for the report – Computer Says No: challenging decisions - draws on the charity’s Early Warning System (EWS) which to date has gathered and analysed 1,600 benefit cases from welfare rights advisers across the UK (see case studies below and in full report).
When they disagree with a DWP decision, UC claimants must ask the DWP to conduct an internal review – called a ‘mandatory reconsideration’ (MR) – of a decision on their award before they can appeal to an independent tribunal. Decisions might, for example, relate to how much UC they should get or whether they are entitled to UC in the first place.
But the research finds claimants are sometimes wrongly advised that decisions can’t be appealed, that they must take a different route to try to resolve the issue, or that they need to provide evidence to challenge a decision when they do not - delaying or blocking their efforts to have mistakes corrected. When people have their claim refused when they first try to claim, their online account is often closed. This makes it even harder to get a decision reviewed because letters explaining why it was refused cannot be accessed any more.
The obstacles to getting a decision reconsidered are all the more worrying for the fact that in almost two thirds (63%) of UC cases that reach a tribunal, a DWP decision is overturned.
In a foreword to the report, former Justice of the High Court Dame Laura Cox DBE says:
“Many people are getting lost in the quagmire of the appeals process. Understandably they lose confidence in the system and give up. Erroneous decisions therefore stand, to the detriment of individual families and to society as a whole.
“If, due to complexity, inflexibility or incoherence, the appeals process in UC cases is almost impossible to understand and to pursue effectively, incorrect decisions go unchallenged and suffering is prolonged. Children fall through that safety net and our system of justice is undermined.
“Much more must now be done to enable those who wish to challenge a decision to do so effectively and without delay. The right to appeal against an adverse decision is an important part of respect for individual dignity, for the accuracy, predictability and consistency of decision-making and, ultimately, for the rule of law.”
CPAG’s report finds:
• The CPAG Early Warning System has received numerous case studies of UC claims being refused part-way through the claim process. Once this has happened claimants can view the history of their online account, but cannot submit a request for the refusal to be reconsidered online, as the account is inactive. As soon as they start a new claim, however, they can no longer access their previous account at all so are unable to see letters explaining why their first claim was refused and setting out how to challenge this decision. This makes it harder to challenge the refusal, so claimants may miss out on entitlement to UC for the period between their first and second claims.
A young UC claimant had her claim refused on the grounds that she was under18 years old before further eligibility checks were carried out. She received no notice of the refusal and could not make an MR request on her online journal because it was inactive. The only option available to her was to start a new UC claim, which resulted in the loss of over a week of entitlement and a further week’s wait for her first payment.
A 55-year-old cancer patient first attempted to claim UC online in December 2018. His claim was refused before he received any payment but he didn’t understand why. His benefit adviser couldn’t help him check the reason, or access his closed claim online, because he had started another claim in January 2019 and could no longer access the closed claim. The new claim was also refused without payment and the claimant tried claiming again in March 2019. Being unable to access details of his past claims makes it difficult for him or his benefits adviser to see what went wrong, to avoid running into the same problems again, and to determine whether the past refusals should be challenged.
• Inappropriate requirements for phone calls or additional evidence: some claimants who have submitted MR requests online have been told that their request cannot be processed unless they submit it over the phone or unless they provide further evidence. This is contrary to DWP’s own guidance, which is clear that any communication with the DWP (via phone, journal, letter etc.) that indicates a claimant would like a decision to be looked at again is an MR request. While further evidence may be submitted as part of an MR, there is no requirement for the claimant to provide it and the DWP has no power to refuse to process an MR request if no further information is provided.
A claimant was found fit-for-work and submitted an MR request in his online journal. The DWP refused to accept the online MR request, directing the claimant to submit it on the phone.
A claimant with an anxiety disorder tried to submit a request for mandatory reconsideration in her online journal and was told to do it by phone. Her benefits adviser disputed this but the work coach insisted that a call was required to gather evidence.
• Dissuading people from making MR requests: some claimants trying to challenge decisions through online journal messages, where the appropriate route is an MR, are being dissuaded by DWP officials from requesting an MR for various reasons. Examples include being told the request won’t be successful, being wrongly told that a decision cannot be appealed, or being encouraged to have an online chat with their work coach instead of trying to resolve the issue via formal channels. Again, this is contrary to DWP guidance stating that any indication that a claimant wants a decision to be looked at again is an MR request.
A UC claimant with pancreatitis and musculo-skeletal problems was dissuaded from pursuing an MR by his DWP case manager who told him that he was "unlikely to win". Citizens Advice is now helping him to challenge four UC decisions (regarding failure to backdate his claim to the date of his attempt to seek help with claiming, a work capability ‘fit-for-work’ decision, refusal of a claim for failure to attend his initial claimant commitment interview and a 3-month sanction for a missed appointment). Numerous benefit problems and a lack of recourse when he tried to have decisions reviewed have caused the claimant what he describes as a mental breakdown.
A single mum of two started her universal credit claim when her partner left the family home. There were no housing costs included in her first payment over a month later, so she couldn’t pay anything towards her rent. She had put her rent into her online claim and taken her tenancy agreement into the jobcentre but when she asked why there were no housing costs included, she was told that the DWP had no evidence of her rent liability. She asked the DWP to change their decision but was wrongly told that the non-inclusion of a housing element cannot be appealed. Increasing rent arrears put her family at substantial risk of homelessness.
CPAG’s report makes recommendations for improving both administration of the MR process and the overall accountability of universal credit.
Commenting on the findings, Chief Executive of Child Poverty Action Group Alison Garnham said:
“The failure to ensure universal credit operates in a way that upholds basic legal duties is cause for serious concern. UC staff dealing with claimants do not always seem to understand the rules as to how decisions can be challenged, and efforts to make the system more user-friendly by encouraging informal online chats can mean claimants are prevented from exercising their rights and ultimately cannot make sure their awards are corrected. The system throws up so many obstacles to getting a decision reviewed that some claimants – often the most vulnerable – are likely to give up and lose out.
“One hundred and thirty thousand individuals and families are moving on to universal credit each month. If it isn’t accountable, and if appeal routes are not crystal clear and readily available to claimants, then universal credit isn’t fit for purpose. We know that DWP officials are aware of our concerns about the problems we highlight in the report and we hope Ministers will act on the evidence and implement our recommendations to help restore confidence in universal credit. Improving training so that all staff are aware of the legal framework for universal credit must be a priority.”
Other findings from the research include:
• Journal entry provided to claimants instead of a decision notice: some claimants have been provided with a simple note in their online journal, rather than a formal notice (in a letter) in response to their MR request. This runs the risk that people may not have received any explanation of their appeal rights (which must be included in official mandatory reconsideration notices). If the note doesn’t inform claimants of their appeal rights, this is unlawful, and can cause further difficulty for claimants looking to proceed to the next stage of the appeals process (ie tribunal) because they lack the necessary official paperwork.
• Refusing an MR request, raising an RTI dispute only:
Information on claimants’ earnings is used to calculate their award and for most employees is passed from employers to DWP through HMRC’s Real Time Information system (RTI). CPAG has received cases where the RTI information is inaccurate, resulting in a wrong UC award. In some cases, DWP staff have refused to process claimants’ requests for an MR in these circumstances, instead directing claimants to the internal RTI dispute process which is opaque, not clearly set out in law, and sometimes protracted. Yet claimants are entitled to make an MR request in addition to pursuing an RTI dispute, and UC regulations enable DWP staff to make a decision that does not use the RTI system in certain circumstances.
A single mother works part-time for McDonalds and has variable hours. The earnings figure that was used for her UC entitlement was £1,500 more than she actually earned, resulting in her receiving about £560 per month less than she should have. She took payslips and bank statements to the jobcentre showing the amount she actually earned but they refused to change her entitlement unless and until the RTI dispute process had been exhausted. The claimant was expected to make do on substantially less than she needed to live on for around 3 months.
• Refusing an MR request, directing claimants to report a change of circumstances instead: CPAG has received cases in which the DWP has prevented claimants from requesting an MR by advising them to report a change in their circumstances (sometimes falsely) instead of seeking to have the original award revised. If claimants take this route, they miss out on back-payments as changes of circumstances only lead to changes in awards going forward, while MR requests can correct decisions from the start of the claim. People who have been underpaid may need this backdating to clear accrued debt or rent arrears. It is not clear why DWP staff are advising this route but it may be because it is a quicker process for both claimants and staff as changes of circumstances can be applied to awards with an automated process while backdating has to be done manually.
A victim of domestic violence wrongly had only half her rent taken into account for her housing costs because she had a joint tenancy agreement with her ex-partner. When she queried this, the DWP advised her to submit a change of circumstances and state that she is the sole named tenant, which would have been a false declaration, rather than processing a mandatory reconsideration. Submitting a change of circumstances would also only have corrected her entitlement going forward, and leave her with rent arrears that should have been covered by her UC. This may have been a misguided attempt by DWP staff to help the claimant by suggesting a workaround, but is clearly inappropriate.
A single mum with 6 year-old-son started her UC claim soon after her husband left the family home. Only half of her rent was included in the award even though she is legally liable to pay all of it under the joint tenancy. She told the DWP that her housing costs amount was wrong and was told that she should have her husband’s name removed from the tenancy agreement – the DWP did not process her mandatory reconsideration request. The claimant then told her UC case manager that it would be impossible to change her tenancy agreement without putting her housing at risk, because her landlord operates a ‘no DSS ‘ policy. The UC case manager advised her to submit a change of circumstances notifying the DWP that her husband had left the property. This would have been a false declaration, as she had already told the DWP in her initial claim that she was the only adult residing in the property. Submitting such a declaration would only have corrected her award from that point onwards and she had already gone two months without the full entitlement. She had only avoided accruing rent arrears by borrowing from family and friends for over 2 months.
• Timescales: some claimants experience significant delays in receiving a decision notice once an MR request has been submitted. CPAG’s EWS has also received a number of cases of lost MR requests, particularly those submitted by post.
Notes to Editors:
Computer Says No: challenging decisions is here. It is the second in a series of CPAG research reports which draw on the charity’s Early Warning System
DWP guidance on mandatory reconsiderations is here
DWP statistics on the outcome of Tribunal cases are here
CPAG media contact: Jane Ahrends on 0207 812 5216 or 07816 909302