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Use this letter if your client:

• is terminally ill and has notified the DWP of this by providing an SR1 (or DS1500) form from their doctor or other health care professional
• has had their UC claim 'closed' for failure to accept a claimant commitment

The main legal arguments in this template are:

• The power to allow exceptions to the general rule requiring a claimants to accept a claimant commitment to be entitled to UC is under s.4(2) of the Welfare Reform Act 2012 (WRA)
• Regulation 16(2) Universal Credit Regulations 2013 (as amended)  (UC Regs) provides an exception for claimants who are terminally ill.
• Terminal illness is defined by reg 2 UC Regs as 'suffering from a progressive disease where death in consequence of that disease can reasonably be expected within 12 months'.
• Under DWP's guidance, 'Terminal Illness', evidence of terminal illness is confirmed when a SR1 (or DS1500) form is provided, unless there is 'good reason' to doubt the information it contains.
• Even if DWP's definition of terminal illness is not met, 'exceptional circumstances' allowing an exception from the claimant commitment may still apply under DWP guidance ADM J1205.
• In requiring your client to accept a claimant commitment, when your client has provided an SR1 (or DS1500) form, and refusing to make or terminating their UC award, the DWP have failed to follow the law and their own guidance.

Information about your client

• name
• address
• national insurance number
• date of birth

Background facts relating to your client

• household/family situation
• other income including Personal Independence Payment award details if relevant
• disability/medical details
• date they claimed and were awarded UC

Information relating to the decision

• date SR1/DS1500 form provided to DWP and by whom
• terminal illness and prognosis (as per that form)
• details of the claimant commitment your client was required to accept, how this was notified to them and why they could not accept it
• contact with DWP and how they responded
• details of financial hardships/debts
• effect on health, etc    

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

You can use this template if all the following apply:

• Your client was subject to managed migration from CTC to UC.
• They claimed UC by their ‘final deadline’ for managed migration.
• On their migration day (the day prior to the first day of the UC award, or prior to the first day UC would have been awarded), they were entitled to a child element in their CTC for a qualifying young person whose education or training was interrupted (for example, because of health problems or disability).
• On their migration day, the young person did not count as a qualifying young person for UC because
  • the day fell on or after 1 September following the young person’s 16th birthday and
  • they were not enrolled on a course of education or training during the interruption of their education or training
• The DWP included a child element for the young person in your client’s ‘indicative UC amount’ when calculating their entitlement to the transitional element.
• As a result, the transitional element the DWP calculated they were entitled to was lower than it would have been had the child element not been included in their indicative UC amount.

The legal arguments in this template include:

• From 1 September following a young person’s 16th birthday until 31 August following their 19th birthday, they can count as a qualifying young person for UC purposes, and therefore a claimant’s UC maximum amount can include a child element for them, if they are enrolled or accepted on a course of non-advanced education or approved training of more than 12 hours a week during term-time: Reg 2 Universal Credit (Transitional Provisions) Regulations 2014 (‘TP Regs’) and reg 5 Universal Credit Regulations 2013 (‘UC Regs’).
• A 16-19-year-old can continue to count as a qualifying young person for CTC during an interruption in their education or training for up to six months if that is reasonable, or for longer if it is reasonable and the interruption is due to their illness or disability (Reg 5(7) Child Tax Credit Regulations 2002).
• Regulation 52 TP Regs provides that a transitional element is included in the calculation of a claimant’s UC award if their ‘total legacy amount’ (the amount determined in accordance with reg 53 TP Regs) is greater than their ‘indicative UC amount’ (the amount determined in accordance with reg 54).
• Reg 54 TP Regs provides that the indicative UC amount is the amount of UC a claimant would be entitled to on migration day (as defined by reg 49 TP Regs) subject to certain assumptions.
• Reg. 54(2)(a) TP Regs specifies one such assumption, which is that: ‘if the claimant is entitled to an award of child tax credit, the claimant is responsible for any child or qualifying young person in respect of whom the individual element of child tax credit is payable’.
• On the claimant’s migration day, the young person was not a qualifying young person for UC purposes, as the day fell on or after 1 September following their 16th birthday and they were not enrolled or accepted on a course of non-advanced education or approved training, but they  were a qualifying young person for CTC purposes.
• 'Qualifying young person’ in reg 54(2)(a) should be defined in accordance with reg 2 TP Regs and reg 5 UC Regs and not by its definition for CTC. In these circumstances, the DWP is therefore incorrect to include a child element for the young person within the indicative UC amount.

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• The name of the young person ('16-19 year-old')
• The 16-19 year-old's date of birth
• The date when the 16-19-year-old enrolled on the course of education or training that had been interrupted
• The legacy benefits your client was receiving immediately before their managed migration to UC
• The date your client claimed UC
• The date your client requested a mandatory reconsideration of the decision on their claim for UC
• The date your client submitted the appeal

Information about the decision(s)

• The date the migration notice was sent to your client
• The 'deadline day' on the migration notice
• The date of the DWP's decision to award/not award UC
• If UC was awarded, whether it included a transitional element
• The date of the mandatory reconsideration notice they received after requesting a mandatory reconsideration of the DWP's decision

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

You can use this template if the following apply:

• Your client's UC maximum UC included a transitional element
• They were subject to the bedroom tax because they had more bedrooms in their rented home than they were allowed under the rules
• Because they need overnight care, they now satisfy the conditions for being allowed an additional bedroom for a non-resident carer (the 'overnight care condition')
• Their UC housing cost element has increased because of this and has caused the erosion of their transitional element

This template is for someone who is a social-rented sector tenant, you must adapt it if your client is a private rented sector tenant.

It is written for someone who is no longer subject to the bedroom tax. If the bedroom tax was just reduced rather than removed (because your client previously had two bedrooms more than they were allowed under the rules and now just has one bedroom more than allowed) you will need to edit the template accordingly.

The legal arguments in this template include:

1. The UC housing costs element is calculated according to the number of bedrooms it is reasonable for the renter to occupy (para 8 of sch 4 Universal Credit Regulations 2013 (‘the UC Regs’).
2. An under-occupancy deduction is made where the number of bedrooms in the accommodation exceeds the number of bedrooms to which the renter is entitled (para 36 of sch 4 UC Regs).
3. In determining the number of bedrooms to which a renter is entitled, any entitlement to an additional bedroom must also be taken into account (para 10(3)(b) of sch 4 UC Regs).
4. A claimant qualifies for an additional bedroom if they meet the overnight care condition outlined in para 12 of sch 4 UC Regs.
5. The overnight care condition was included in universal credit legislation so as to avoid discriminating against claimants - per Daly & Ors, R (oao) (formerly known as MA & Ors) v SSWP [2016] UKSC 58).
6. Regulation 55(2)-(4) of the Universal Credit (Transitional Provisions) Regulations 2014 (the ‘UC(TP) Regs’) provides for the ‘erosion’ of the UC transitional element in the event of a relevant increase being made to an award from the second assessment period onwards.
7. An increase to the housing costs element, due to meeting the overnight care condition and no longer having the bedroom tax applied, is a relevant increase as defined by reg 55(4) UC(TP) Regs.
8. It’s argued that a claimant whose transitional element is eroded in these circumstances has been unlawfully discriminated against, contrary to art. 14 European Convention on Human Rights read with art. 1 of Protocol 1 (‘A1P1’).
9. Benefit entitlement falls within the ambit of A1P1, see Stec v United Kingdom [2005] ECHR 924.
10. The  'erosion' of a transitional element when a claimant's housing costs element has increased due to the application of the overnight care condition (so as to avoid discriminating against the claimant) means the claimant is treated the same as some other claimant whose housing costs element increases for a reason other than providing an exception in order to avoid discrimination.
11. This failure to treat a disabled person that meets the overnight care condition differently compared to a person whose situation is significantly different amounts to Thlimmenos discrimination.
12. Using the approach in Thlimmenos v Greece (§46), the Tribunal should consider whether the failure to treat the claimant differently pursues a legitimate aim and, if so, whether the failure to provide an exemption to the erosion of the transitional element in these circumstances is a proportionate means of achieving that aim.
13. It is argued that there appears to be no legitimate aim, and even if there was, the lack of exemption is not proportionate given it means that the claimant does not practically benefit from the exception to the bedroom tax for those requiring overnight care, itself introduced to avoid discrimination.
14. The First-tier Tribunal should avoid the discriminatory outcome by disapplying reg.55(2) UC(TP) Regs so that the transitional element does not erode in these circumstances.

To complete this template you need the following information.

Information about your client

• name
• address
• previous addresses over the period since their UC was awarded
• national insurance number

Background facts

•  Brief details of your client's disability and care needs
• The benefits/tax credits your client was receiving immediately before their migration to UC
• The date your client claimed UC
• The date their UC assessment periods start and end
• The date(s) of any change(s) of address since their migration to UC
• The amount of their housing costs for their current and, if relevant, previous address(es)
• If they changed address, the date they notified the DWP of this
• The number of bedrooms in their home and the number they are allowed when calculating the housing costs element
• The date from which your client met the conditions for a bedroom for a non-resident carer (the 'overnight care condition'). 
  For further information about this condition see our Welfare Benefits and Tax Credits Handbook (for subscribers). The number of bedrooms you are allowed]  
• The date your client requested a mandatory reconsideration of the decision on the erosion of their transitional protection
• The date your client submitted the appeal

Information about the decision(s)

• The date your client's legacy benefit ended on managed migration to UC
• The date of the DWP's decision to award award your client UC
• The date from which the DWP applied the bedroom tax to their UC housing costs element
• The amount of the housing costs element awarded to your client from that date
• The amount of the housing costs element awarded from the date your client was allowed an extra bedroom because they met the overnight care condition
• The date of the DWP's decision that your client's UC transitional element should be ‘eroded’ as a result of an increase in their housing costs element caused by the removal of the bedroom tax (or reduction in the bedroom tax) due to them meeting the overnight care condition
• The amount by which your client's transitional element was eroded as a result of this change
• The date of the mandatory reconsideration notice your client received after requesting a mandatory reconsideration of the DWP's decision

You can use this template if all the following apply:

• Your client transferred from CTC to UC under the managed migration process.
• Your client is worse off immediately after managed migration to UC because:
  • on the migration day (the day prior to the first day of the UC award), they had a 19-year-old child who counted as a ‘qualifying young person' for CTC and for whom they were getting a child element in their CTC
  • on the migration day the 19-year-old did not count as a qualifying young person for UC (because it fell on or after 1 September following the child’s 19th birthday)
  • the DWP included a child element for the 19-year-old in your client’s ‘indicative UC amount’ when calculating their entitlement to the transitional element
  • as a result, the transitional element the DWP calculated they were entitled to was lower than it would have been had the child element not been included in their indicative UC amount

The legal arguments in this template include:

• From 1 September following a young person’s 19th birthday they cannot count as a qualifying young person for UC purposes and therefore a claimant’s UC maximum amount cannot include a child element for them: Reg 2 Universal Credit (Transitional Provisions) Regulations 2014 (‘TP Regs’) and reg 5 Universal Credit Regulations 2013 (‘UC Regs’).
• A 19-year-old can continue to count as a qualifying young person for CTC up to their 20th birthday in certain circumstances.
• Regulation 52 TP Regs provides that a transitional element is included in the calculation of a claimant’s UC award if their ‘total legacy amount’ (the amount determined in accordance with reg 53 TP Regs) is greater than their ‘indicative UC amount’ (the amount determined in accordance with reg 54).
• Reg 54 TP Regs provides that the indicative UC amount is the amount of UC a claimant would be entitled to on migration day (as defined by reg 49 TP Regs) subject to certain assumptions.
• Reg. 54(2)(a) TP Regs specifies one such assumption, which is that ‘if the claimant is entitled to an award of child tax credit, the claimant is responsible for any child or qualifying young person in respect of whom the individual element of child tax credit is payable’
• ‘Qualifying young person’ in reg 54(2)(a) should be defined in accordance with reg 2 TP Regs and reg 5 UC Regs and not by its definition for CTC.
• On the claimant’s migration day, their 19-year-old child was not a qualifying young person for UC purposes, as the day fell on or after 1 September following their child’s 19th birthday, but they were a qualifying young person for CTC purposes.
• In these circumstances, the DWP is therefore incorrect to include a child element for the claimant’s 19-year-old within the indicative UC amount.

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• The name of your client's 19-year-old child
• The 19-year-old's date of birth
• The date when the 19-year-old enrolled on the course of education they were on when your client claimed UC
• The legacy benefits your client was receiving immediately before their managed migration to UC
• The date your client claimed UC
• The date your client requested a mandatory reconsideration of the decision on their claim for UC
• The date your client submitted the appeal

Information about the decision(s)

• The date the migration notice was sent to your client
• The 'deadline day' on the migration notice
• The date of the DWP's decision to award/not award UC
• If UC was awarded, whether it included a transitional element
• The date of the mandatory reconsideration notice they received after requesting a mandatory reconsideration of the DWP's decision