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You can use this template if:

• your client made a claim for UC (the 'first UC claim')
• they didn't attend the initial evidence meeting and so their UC claim was refused (that is, they were notified their claim had been ‘closed’)
• they subsequently made another claim for UC (the ‘second UC claim')
• they attended an evidence of identity interview in connection with the second UC claim and proved their identity
• UC has not been awarded from the date of the first UC claim

If your client has not made a second UC claim this template can be adapted for use, provided that they can prove their identity (for example, at appeal).

The legal arguments in this template include:

1. There is no legal concept of ‘closing’ a claim. The ‘closure’ of a claim can be interpreted as a refusal to make an award in respect of the claim.
2. Reg. 37(2) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI No. 381) (the ‘UC(C&P) Regs’) allows the Secretary of State to require a person who has made a claim for UC to provide information or evidence.
3. Applying the principles set out in Kerr and R(H) 3/05, a failure to satisfy reg. 37 does not in itself provide the basis for a determination that a claimant is not entitled to universal credit. Instead, the decision maker should make a decision on entitlement on the basis of the information available.
4. Although a negative inference may be made from the failure to attend an initial evidence meeting, if the claimant on application for revision or appeal then provides sufficient evidence of identity the basis for such a negative inference falls away.
5. The First-tier Tribunal can make any decision which the SSWP could have made, taking account of available evidence relevant to the facts in dispute, this includes evidence produced after the date of a decision under appeal if it relates to a claimant’s circumstances at the date of decision (R(DLA)4/05).

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• the date your client claimed UC
• the date of the initial 'evidence of identity' meeting they were supposed to attend but did not
• the date your client requested a mandatory reconsideration of this decision
• the date your client submitted the appeal
• if your client submitted a further claim for UC following the 'closure' of their earlier claim
  • the date they did so
  • the date of the subsequent 'evidence of identity' meeting which they attended

Information about the decision

• the date of the DWP's decision that your client was not entitled to UC (that is, the date they were informed their claim was 'closed)
• if possible, a copy of the notification of this decision (for example either a letter or journal note)
• the date of the mandatory reconsideration notice they received after requesting a mandatory reconsideration of the DWP's decision
• if your client submitted a further claim for UC following the 'closure' of their earlier claim
  • the date of the DWP's decision to award UC, if it has been awarded
  • the date from which UC was awarded

Use this template if all the following apply:

• your client was receiving contributory ESA, topped up by income-related ESA when they claimed UC
• they received the 2-week run-on of ESA
• their contributory ESA was treated as unearned income for UC from the first day of their UC award

The template assumes that your client underwent managed migration. If they have not undergone managed migration, then you'll need to edit the template.

The legal arguments in this template include:

1. A claimant who migrates from ESA to UC and whose ESA award included both income-related ESA and contributory ESA is worse off in their first UC assessment than someone whose ESA award was solely income-related ESA for the following reasons:
   • on migration to UC from ESA, income-related ESA ‘runs on’ for two weeks after the start of the UC award (reg 5 Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations) and contributory ESA continues as old-style contributory ESA during this two-week period, then converts to new-style contributory ESA
   • the definition of ‘employment and support allowance’ in reg 2 Universal Credit Regulations 2013 (the 'UC Regs') does not cover income-related ESA or old-style contributory ESA, so neither can be considered to be unearned income under reg.66(1)(b)(ii) UC Regs and therefore they do not count as income for UC
   • however, reg 8B Universal Credit (Transitional Provisions) Regulations 2014 (the ‘UC(TP) Regs’) treats a UC claimant whose old-style contributory ESA converts to new-style contributory ESA after the end of the run-on period, as having been entitled to their award of new-style contributory ESA from the first day of their UC award. The result is that all the contributory ESA received during the first assessment period reduces the UC award during that assessment period as it is considered to be unearned income under reg 66(1)(b)(ii) UC Regs.
2. It is argued that the effect of reg 8B UC(TP) Regs is that a claimant whose ESA award included both income-related ESA and contributory ESA is unlawfully discriminated against, contrary to art. 14 European Convention on Human Rights (‘ECHR’) read with art. 1 of Protocol 1, when the amount of UC they receive for their first UC assessment period is less than the amount of UC received by someone in similar circumstances but whose ESA award was solely income-related ESA.
3. Entitlement to a means tested benefit such as universal credit falls within the ambit of A1P1: Stec v United Kingdom [2005] ECHR 924; R (oao RJM) v SSWP [2008] UKHL 63.
4. The discrimination occurs on the ground of possession of contributory ESA. This is an 'other status' for the purposes of A1P1. Alternatively, or additionally, persons who are in receipt of contributory ESA have a more recent and/or substantial history as employed or self-employed persons (sufficient to meet the national insurance contribution conditions for contributory ESA) prior to their claims than persons on income-related ESA only. That more recent employment history is also an 'other status'.
5. For this difference in treatment to be lawful the SSWP must show it is justified.
6. If the difference in treatment is found to be unlawful, the First-tier Tribunal can avoid the discriminatory outcome by disapplying reg 8B UC(TP) Regs.

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• the benefits/tax credits your client was receiving immediately before their migration to UC
• The weekly amount of ESA your client was receiving on migration to UC
• Whether your client was in the ESA support group
• The date your client claimed UC
• The date your client requested a mandatory reconsideration of the decision on their UC entitlement in the first assessment period
• The date your client submitted the appeal

Information about the decision

• the date the DWP issued a migration notice to your client
• the 'deadline day' on the migration notice
• the date of the DWP's decision to award award UC
• if possible, a copy of your client's UC payment statement showing how their UC was calculated in the first assessment period of their award
• the date your client's entitlement to income-related ESA ended following the two-week run-on period
• the date of the mandatory reconsideration notice your client received after requesting a mandatory reconsideration of the DWP's decision