Early Warning System eBulletin - September 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.

We hear a lot about the issues facing ill or disabled UC claimants. Recently we've been told about:

Work-related requirements while waiting for an assessment
LCW/RA problems for older claimants

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

Call for evidence in September: We want to hear about anyone who has received a letter telling them that their legacy benefit is stopping and that they need to claim UC. Tell us about your cases by completing an online form or emailing the Early Warning System. And read CPAG's latest blog about managed migration.

Work-related requirements on UC while awaiting an assessment

Somebody makes a new UC claim, reports that they have a health condition that limits their ability to work, and hands in a fit note.

It then comes as a surprise when they are told they will be in the 'all work-related activity group' – also known as the intensive work search regime – until they have had an assessment.

Starting point

Can this be correct? The answer is that, yes, in many cases, it is.

The situation might be complicated by your claimant's other characteristics (for example, if they have a young child), or the nature of their condition (for example, if they are terminally ill), or if they have moved straight on to UC from ESA.

But for the majority of claimants, the starting point is that they will be expected to prepare for, look for, and attend appointments about work, until a work capability decision says otherwise.

Easements

The DWP recognises that this can only be a starting point, and that work-related requirements must be eased on a case-by-case basis to fit with a claimant's 'capabilities'. However, before there has been a formal work capability assessment, there is a significant risk that the DWP and the claimant will disagree about what their capabilities are and what activities are appropriate.

The Early Warning System has heard about many claimants this year being required to attend weekly face-to-face appointments at the Jobcentre while they had sick notes and were waiting for work capability assessments, even when this was causing obvious problems. These included one person who had had a major stroke, another with agoraphobia, and a third who already had the enhanced rate of both components of personal independence payment. Requests to switch to phone calls or less regular appointments were only successful in a few of the cases reported to us.

What we've done

The Early Warning System wrote to the DWP in May 2022 about these cases and received a response in August, which suggested that the DWP is looking at reminding its staff about how to use conditionality 'easements', but also defended its emphasis on face-to-face Jobcentre appointments since the lifting of Covid restrictions. The response also stated that there is ongoing work to improve the assessment process and the timeliness of decisions.

The DWP's internal guidance on the intensive work search regime contains some pretty strong messages about face-to-face appointments. If a work coach is insisting that they can't make exceptions for your client, remind them of paragraph J3160 in DWP's Advice for Decision-Making and point them to the Switching off work availability and work related activities guidance.

CPAG has produced a template judicial review pre-action letter on this topic (JR39) for use as a last resort. Our Judicial Review Project is on hand to help you adapt and use the letter.

Please let us know if you have a client who has inappropriate work-related requirements, as we have the opportunity to send more case examples directly to the DWP.

You can also read CPAG's recent article about DWP's duty to make reasonable adjustments, and our February 2022 report specifically on reasonable adjustments for UC claimants with mental health problems.

LCW/RA problems for older UC claimants

UC is a working-age benefit. As a general rule, people do not get it once they reach pension age. But there is an exception for some people in couples who have a partner under pension age.

Unfortunately, there are a few common issues for these older UC claimants.

Being refused a work capability assessment or LCWRA element because of your age

We have heard recently about a claimant who was told he couldn't qualify for a LCWRA element – or any UC element in his own right – because of his age. Not only was this wrong, but as somebody getting attendance allowance, he should actually have received a LCWRA element automatically. The relevant rule is in paragraph 5 of Schedule 9 to the Universal Credit Regulations 2013.

There are also claimants who are told that they can't be referred for a work capability assessment once they have reached retirement age. CPAG has produced a template judicial review pre-action letter on this issue (JR101) and our Judicial Review Project is on hand to help you adapt and use the template.

Getting LCW/RA from day one

People in mixed-age couples often wait until the date they reach pension age, or later, before making a claim to UC. That's because their previous benefit (ESA, for example) stops automatically on that date.

But if the UC claim is delayed until after ESA has stopped, the LCW/RA decision from ESA can't be carried over onto the UC award, as described in our February e-bulletin. This can then mean a long wait for assessment and a new decision. Even if the new decision is positive and the claimant is given a LCWRA element, it will not generally be paid for the first three months of the award, meaning that he or she loses out on more than £1,000.

It might be possible to overcome this issue by backdating the UC award by as little as one or two days, but this will only be possible when the claimant has certain reasons for not claiming sooner. If backdating isn't possible, and it was the DWP that advised your client to put off claiming, you might consider making a complaint and asking for compensation.

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:

Experiences with the online PIP2 form and the Apply for PIP pilot – CPAG reported on these digital developments in April 2022. We'd like to hear how they are working out for claimants and advisers.
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 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.