Early Warning System eBulletin - August 2022

The Early Warning System collects evidence from advisers about how changes to the benefits system affect their clients. We use this data for campaigns, in discussions with government, and in advice resources.

In the last month, we have heard a lot about navigating the benefits system after a death:

Partners being asked to repay money they don't owe
Bereaved carers missing out on UC
Unmarried partners still unable to claim bereavement benefits

Read more about what advisers are saying and what CPAG is doing below.

Please also read on for a clarification to our June 2022 e-Bulletin.

Call for evidence in August:

we want to hear about your clients' experiences dealing with the DWP after someone has died. The DWP is in the process of updating its 'bereavement service' and we would like to pass on feedback. Tell us about your cases by completing an online form or emailing the Early Warning System.

Clarification to the June eBulletin

In June, we talked about the maximum rate of universal credit deductions. The DWP, as a matter of policy, does not usually make deductions from a UC award that exceed 25% of the standard allowance. It’s understood that this policy maximum does include deductions for advances. However, the DWP has argued that deductions for advances are legally different from other deduction – and this has consequences for rates of recovery.

The updated version of the e-Bulletin is available here.

'Direct payments after death' - and recovery action

Sometimes, although a claimant's death is notified to the DWP quickly, an extra amount of disability benefit for a period after their death is paid into their bank account in error. The DWP has a standard practice of writing to bereaved partners asking them to pay this money back.

Partners in these situations have no legal obligation to pay anything. However, the 'DM15' letters they get don't explain this.

Ian lost his 60-year old wife to cancer. When she died, Ian told the DWP straight away, but £130 of personal independence payment went into her bank account before the DWP had processed the information. Ian got a letter six weeks later saying that the DWP was 'obliged' to ask him for the money back.

Ian’s advice worker told us:

“He was distraught at the receipt of the letter. There were quite a lot of tears in our office."
“When I told him that he didn’t have to pay it, the look of relief on his face was palpable. It was one less thing he had to worry about during a time that was intensely stressful anyway.”

Apart from the potential to mislead people about their legal position, the timing of these letters could not be worse.

The Early Warning System wrote to the DWP in July about this practice. Please get in touch if you have a client who has been affected.

Chapter 53 of the CPAG Handbook has more information about overpayments, including the specific circumstances in which an overpayment can be recovered from someone other than the claimant.

Being refused the carer element of UC after a bereavement

Last month we heard from an adviser whose client was receiving a carer's allowance run-on. Her husband (whom she cared for) had passed away and she had made a new UC claim straight afterwards. The issue was that her UC award was being reduced by the full amount of her carer's allowance and she was not being given a carer element.

The DWP's decision-maker stated that anyone not already claiming UC at the date of a bereavement couldn't get carer element in this situation.

CPAG has come across this issue before. It rests on a mistake about the law, and should not be happening. The claimant in this case was advised to request a mandatory reconsideration.

The DWP's own guidance is actually fairly clear about this issue. It was changed after a template pre-action letter was put into circulation by CPAG's Judicial Review Project. But arguably the updated guidance still does not go far enough.

The up-to-date guidance is in the DWP's Advice for Decision-Making at F6042. The effect of the guidance is that, in most cases, a carer element must be included for the first assessment period of a new UC award to a bereaved carer.

It is arguable that the element should actually be paid for longer than one assessment period. This argument has been set out by CPAG in an appeal submission template which advisers are free to adapt and use.

Unmarried partners still unable to claim bereavement benefits

At the moment, only a bereaved spouse or civil partner can claim Bereavement Support Payment. An unmarried partner can't.

This rule is due to change to allow unmarried partners with children to claim. That's because the rule was found to be incompatible with human rights law in a CPAG test case (R (Jackson & Others) v SSWP [2020] EWHC 183) decided in early 2020. The same change is due in respect of Widowed Parent's Allowance, after an even earlier Supreme Court decision (Re Mclaughlin's Application [2018] UKSC 48).

Inexplicably, these changes to the law, which DWP accepts that it needs to make, are being delayed. The Work and Pensions Committee and Joint Committee on Human Rights wrote to the DWP last month saying it must take concrete action before Parliament's summer recess.

If you have a client who is affected, it's not recommended that they make a BSP claim now, because the claim will simply be refused. Instead, they should have a 12-month window for making a claim from the date the law is changed. For claimants who have already made an unsuccessful claim and have an ongoing appeal, it is worth asking the Tribunal to postpone making its decision until after the law changes.

You might suggest that your affected client contacts their MP, asking them to raise their case with the Secretary of State for Work and Pensions, to push the DWP into action.

Chapter 25 of the CPAG Handbook has more information about bereavement benefits and who can claim them.

Please get in touch if you would like to be notified when the law changes.

Do you have something to tell us?

Hearing about your cases has a profound impact on our work.

Some of the topics we are looking out for include:

'Reasonable adjustments' not being made

CPAG reported on this issue in February. We want to hear about anything from a client struggling with their online UC account, to a phone appointment being refused, to inappropriate work-related requirements.

Earnings and other benefit income on UC

Has your client had to challenge Real Time Information about their earnings? Or has their income from other benefits caused issues on UC?

Adequacy of means-tested benefits

Do you have any simple examples of your clients being unable to afford the basics? This evidence is crucial following the £20 cut to UC last year and as the costs of living rise.

Submit a case online or email the Early Warning System to tell us more. We can also be reached by phone on 0207 812 5226.

If you know an individual who would like to contact us directly about their own case, please let them know about our contact form for non-advisers.