Early Warning System eBulletin - December 2020
In this edition of the e-bulletin, we provide a brief update on the habitual residence test and the benefit cap, and consider in detail three further topics which emerged over the past month.
- Habitual Residence Test failures
- Benefit cap bites after grace period
- Universal credit supersessions
- Universal credit national insurance number requirement
- Personal Independence Payment extensions for Tribunal-made awards
Tell us what’s happening in your cases by completing an online form or emailing the Early Warning System.
1. Habitual residence test failures
The number of case studies received by the EWS which concern the habitual residence test (HRT) continues to increase. For what to do when your client fails a HRT, you can read our November e-bulletin.
On 17 November, CPAG learned from a DWP external stakeholder workshop that universal credit (UC) applications requiring a HRT are double what they were prior to the pandemic, and that HRT pass rates have recently fallen.
On 18 December, the Court of Appeal ruled that it was unlawful to exclude pre-settled status as a sufficient right to reside for claiming means-tested benefits. We are waiting to hear whether the DWP plan to appeal. If your client has pre-settled status, read what to do next on the EU Pre-Settled Status Test Case page of the CPAG website.
2. Benefit cap bites after grace period
CPAG continues to campaign for the benefit cap to be lifted. More people are set to be affected now that grace periods which started in March are due to expire. Read about the anticipated increase in numbers of people affected in CPAG’s Capped for Christmas Analysis.
We are working with the housing charity, Shelter, who are looking at the prospects of a legal challenge for people who have been subject to the cap due to a loss of earnings caused by the pandemic. Keep telling us about your cases by completing an online form or emailing the Early Warning System.
3. UNIVERSAL CREDIT SUPERSESSIONS
EWS cases concerning UC supersessions are on the rise. Supersessions are decisions which amend entitlement following a relevant change of circumstances (whereas a revision is a retrospective change to a decision because it was wrong at the time it was made).
Cases are illustrating unfairness caused by the correct application of the rules as well as problems with the DWP’s administration of supersessions.
UNFAIRNESS CAUSED BY THE RULES
In UC, a change of circumstances which takes place part-way through an assessment period is applied to the whole assessment period. This can disadvantage claimants whose change in circumstances reduces their entitlement, for example:
A UC claimant stops being a carer part way through their assessment period. The Carer Element is removed for the whole assessment period even though Carer’s Allowance income still tapers entitlement
A UC claimant moves home. They move from a private tenancy into their parent’s home (where they pay no rent) near the end of their assessment period. The Housing Costs Element is removed for the whole assessment period even though they have liability for nearly a whole month’s unpaid rent.
The DWP has not acknowledged that the regulations are problematic in this respect, stating that it is a natural consequence of “simplifying the system” and there are “winners and losers”. Although this rule certainly simplifies administration of the benefit for the DWP, it complicates matters considerably for claimants.
A legal challenge of the regulations is unlikely to be successful. However, with more evidence of these problems, we can raise awareness and campaign for change. Tell us about your cases by completing an online form or emailing the Early Warning System.
UNFAIRNESS CAUSED BY POOR ADMINISTRATION
EWS cases show that the DWP are failing to process changes in circumstances correctly in a number of ways:
Refusing to supersede entitlement retrospectively, for example:
A couple claim UC. When one is awarded Personal Independence Payment and the other Carer’s Allowance with a start date some months ago, the DWP amend entitlement from now on only. The couple should have had a benefit cap exemption, housing costs contribution exemption and a carer’s element from the date the PIP and CA awards started.
Failing to promptly include relevant elements despite immediately tapering from linked income, for example:
A couple claim UC. One claimant receives state pension and PIP and is therefore automatically entitlement to the LCWRA element. The DWP fail to include the LCWRA element until the claimants become aware of the rules and insist on inclusion of the element.
Stopping whole UC payment despite change of circumstances affecting only one element, for example:
A UC claimant is in dispute with the DWP about whether her childcare costs were reported on time to include the element in her award. She does not receive any UC at all until the dispute is resolved.
To remedy individual cases, advisers may assist clients to submit a mandatory reconsideration request and consider raising a complaint. It is worth noting that complaints are now being triaged and prioritised if they concern vulnerable people, severe hardship linked with UC payments or evictions/homelessness.
For a more wide-reaching solution, keep telling us about your cases by completing an online form or emailing the Early Warning System.
4. UNIVERSAL CREDIT NATIONAL INSURANCE NUMBER REQUIREMENT
EWS cases show that claimants awaiting a national insurance number (NINo) are not having their UC claims paid, and crucially, are unable to access the UC advance. More recently, EWS cases show that UC claims are stopping altogether for couples when one of them becomes eligible for a NINo but is yet to be issued one.
According to the regulations, UC can be claimed by someone as soon as they have applied for, and have submitted sufficient evidence to be granted, a national insurance number. However, the digital UC system is incapable of processing payments for claimants who do not yet have a NINo, and the DWP maintains there is no entitlement to UC until such time as a claimant has been issued a NINo, because it is required as part of the identity check.
This issue is particularly significant now that the pandemic has caused record numbers of people to claim benefits and has disrupted one of the two routes for obtaining a NINo. The “employee route” requires an application directly to HMRC, then confirmation of an applicant’s identity and right to work in the UK, either from the Home Office or from a DWP face-to-face interview. Staffing issues at the Home Office during the pandemic meant applicants were unable to retrieve relevant documentation from them. The closure of Jobcentres has meant that the alternative, a DWP face-to-face interview, is impossible. The promised digital solution has been pushed back repeatedly, as evidenced by responses to parliamentary questions in August, September and on 19 November and 30 November.
The “benefit route” should be automatically triggered by a benefit claim. However, EWS cases tell us that DWP staff do not consistently start the process when they should. Additionally, DWP staff are often failing to start the process until all other checks have been completed resulting in substantial delay of the issue of the NINo. Some DWP staff are directing claimants to apply for a NINo via the redundant “employee route” or failing to start the process at all unless prompted by the claimant.
To remedy individual cases, you can send a pre-action judicial review letter, available on the National Insurance Numbers Judicial Review Pre Action Letters page of the CPAG website.
For a more wide-reaching solution, keep telling us about your cases by completing an online form or emailing the Early Warning System.
5. PERSONAL INDEPENDENCE PAYMENT EXTENSIONS FOR TRIBUNAL-MADE AWARDS
The DWP has made no formal announcement to confirm whether Personal Independence Payment (PIP) awards are being automatically extended.
In March, the DWP suspended face-to-face assessments for PIP claims and confirmed that those expecting their PIP award to expire during the suspension “will continue to receive their current payments as normal while alternative arrangements are put in place to review or reassess their claim.” And in July, the DWP confirmed that face-to-face assessments would remain suspended and they would announce any changes to this in due course.
The latest announcement did not expressly confirm whether expiring PIP awards would be extended, but EWS cases indicate that PIP awards which are close to expiry are still being extended for 6 months. However the extension is not being granted to claimants whose PIP awards were made by a Tribunal. This issue came up previously in May but was resolved following Justin Tomlinson’s response to a parliamentary question on 14 May 2020.
Although the DWP is correct in that they cannot revise a decision made by a Tribunal, they may however be able to supersede the decision. Regulation 23 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 permits a supersession where there has been a change in circumstances. It may be argued that there has been a relevant change in circumstances because when the award was made, needs were expected to last until the expiry date but now that date is approaching, needs are expected to last longer. CPAG reasoned that this was the authority upon which the DWP relied when extending Tribunal-made awards in the summer.
For help remedying individual cases, please email our judicial review project.
For a more wide-reaching solution, keep telling us about your cases by completing our online form or emailing the Early Warning System.
DO YOU HAVE SOMETHING TO TELL US?
Hearing about your cases has a profound impact on our work. If you have a case which shows how changes in social security affect you or your clients, please let us know.
Topics we are looking out for:
£20 uplift – do you have examples of the difference made and the necessity of maintaining the uplift?
Benefit cap – are you seeing grace periods expiring and the benefit cap affecting claimants?
Furlough and SEISS – are people accessing the schemes successfully?
Submit a case or email the Early Warning System to tell us what you're seeing and how we can help.
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