Early Warning System eBulletin - March 2022
Call for evidence in March: we want to hear about single carers who would benefit from UC help with childcare costs, but aren't eligible. Tell us about your cases by completing an online form or emailing us at [email protected]. The more we know, the more we can do.
Carer’s allowance but no carer element
We have been hearing about claimants who have gone for months or even years with no carer element, simply having the full amount of carer’s allowance deducted from their UC.
As soon as this error is spotted, your client can ask to have a carer element added to their UC award, and they should receive arrears going back to when the carer’s allowance started. This applies even if your client failed to mention their carer's allowance to UC earlier.
(Technically speaking, what your client is doing is asking for a supersession, with the effective date being the first day of the assessment period in which their carer's allowance started. The relevant rules are in paragraphs 21 and 31 of Schedule 1 to the Universal Credit (etc) (Decisions and Appeals) Regulations 2013.)
Unfortunately, we hear quite often that UC has wrongly refused these requests. In one case, a claimant asked for a carer element to be applied to her UC for the previous four months, to the start date of her carer’s allowance award. She was told on her UC journal that this wasn’t possible, and that the element could only be added from the assessment period when she made her request. This was wrong, and the issue was eventually resolved after her adviser quoted the law.
You can find out more about the carer element in Chapter 5 of our Welfare Benefits and Tax Credit Handbook (subscriber content).
In a case where there is a delay in getting a missing carer element added, you might consider using our specific judicial review pre-action letter template (JR64). The Judicial Review Project is on hand to help you adapt and use the template.
Overpayments and back pay
The rules
When somebody is already getting UC and a decision is made that they are also entitled to carer’s allowance, they will generally get:
- a lump sum of carer’s allowance, covering the period from their claim start date (which might be a couple of months, or more); and
- a notice that they have been overpaid UC for the same period.
The two things will generally arrive in this order, meaning that the claimant might assume the carer’s allowance back-pay is theirs to spend, only to be told later that they need to pay some of it back to the DWP.
This is needlessly getting some claimants into debt, leading to deductions which they can scarcely afford. It is in contrast with the DWP’s approach elsewhere in the benefits system, where overpayments are routinely off-set against back pay before the claimant receives anything.
(Of course, it’s worth saying that some claimants prefer to get their back-pay in full and make separate arrangements to deal with their overpayments.)
When hearing about these kinds of cases, we have often been told that the overpayment amount notified to the UC claimant is actually too high, because the DWP has failed or refused to apply a carer element for the period in question. On this, see above.
For the rules on ‘abatement’ – ie, DWP using back-pay to clear an overpayment – see section 74 of the Social Security Administration Act 1992 and Chapter 53: Overpayments in our Welfare Benefits and Tax Credits Handbook (for subscribers).
Carer element arrears without a carer’s allowance award
We have heard about a few cases since the start of the year which go as follows.
A universal credit claimant does not mention their caring responsibilities in their UC claim. There are lots of reasons why this might be.
The person they care for then qualifies for the relevant rate of a disability benefit.
The carer doesn’t apply for carer’s allowance, but asks to have the carer element applied to their UC from the start date of the disability benefit award. The DWP says no.
If any justification is given, it is that there has been a late notification of a change of circumstances, because the caring responsibilities haven’t been mentioned before in the UC claim or journal, and there are no ‘special circumstances’ that justify a late notification.
Is the DWP getting this right? Its own Advice for Decision-Makers seems to suggest not (ADM4361, ‘Connor’ example). That's so long as the person cared for is the claimant's partner, child or qualifying young person. However, the law is open to other interpretations, and the guidance could be clearer.
One way to avoid this issue would be by applying for backdated carer’s allowance, in any case where it’s available. Carer’s allowance backdating rules are different, and often more generous, and once it’s been awarded, the DWP will have to mirror it with a UC carer element (see above). And there can be other good reasons to claim carer’s allowance alongside UC, even if it doesn’t seem to make a difference financially.
Of course, some claimants won’t be able to get carer’s allowance because of their earnings, and this means that they are stuck challenging the kinds of decisions described above.
The rules covered in this section can be found in paragraphs 21 and 31 of Schedule 1, and in regulations 2 (definition of ‘family’) and 36, of the Universal Credit (etc) (Decisions and Appeals) Regulations 2013. The guidance mentioned is in ADM A4361.
If you are uncertain about one of your cases, please contact our advice services.
CPAG test cases
EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018
While a 6-month past presence test in disability living allowance (DLA) is now being applied to children coming to the UK from abroad, their accompanying carers (usually the parents) are still being subject to a 2-year past presence test, albeit that the First-tier Tribunal has recently allowed two appeals on this issue. Further details and a template MR request are available on our test case page: Disability Living Allowance 2 year Past Presence Test for children (plus Carer's Allowance for their parents).
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.
Some of the topics we are looking out for include:
- The £20 cut – We know it is being deeply felt by all UC claimants, as the costs of living rise. To make persuasive arguments to Government, we need specific examples of the effects it is having.
- 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?
- PIP online – Has your client been sent a digital version of the PIP2 form to complete? Or have they been asked to make their PIP claim online, from start to finish, as part of the Apply for PIP pilot?
Submit a case online or email the Early Warning System to tell us more: Contact the Early Warning System team
Do you need CPAG's advice?
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020 7812 5231 Monday to Friday, 10am-12 and 2pm-4pm
Universal credit advice by email
CPAG Welfare Rights
The Early Warning System
The Early Warning System collects evidence from advisers about how changes to the benefits system are affecting their clients. We use this data for campaigns, in discussions with Government, and to produce advice resources.