Managed migration – moving to universal credit

The start of the process: the migration notice

The DWP may, at any time, issue a migration notice to a person entitled to an award of an existing benefit, informing them that those benefits will stop, that they will need to claim universal credit (UC), and specifying a ‘deadline day’ by which they will need to claim UC. They must also issue a migration notice to non-claimant partners. The deadline day must be more than three months from the date of the migration notice.1

The DWP may cancel a migration notice issued to a person if it has been issued in error or if the Secretary of State for Work and Pensions (SSWP) considers it necessary to do so in the interests of the person, or any class of person, or to safeguard the efficient administration of UC.2

Deadlines

Where there is good reason to do so, the DWP may extend the deadline day if a notified person requests such a change before the deadline day or on the DWP’s initiative.3 The DWP’s position is that extensions, either requested by the claimant or on the DWP’s initiative, cannot be made once the deadline day has been reached.4

DWP internal guidance states that a maximum of a four-week extension can be applied at a time, but that there is no limit to the number of times an extension may be requested or allowed.5

The guidance provides non-exhaustive examples of circumstances in which there might be a good reason for extending the deadline.6

Extensions must (by law) be notified to the claimant.7

The ‘final deadline’ is the day that would be the last day of the first assessment period of an award of UC that commenced on the deadline day.8

Deadlines and awards

Generally, a UC award starts from the date the UC claim is submitted.

The DWP may, in the case of a UC claim made on or before the deadline day, and which does not involve backdating, set a later commencement day for the award of up to one month later than the date of claim.9 This has been included in the regulations merely as a ‘pressure valve’ for use in the event that the number of claims threatens service delivery.

Claims made on the deadline day mean that the award begins, in accordance with the general rule, on the deadline day.

If a claim is made after the deadline day but on or before the final deadline, then the UC award will commence on the deadline day. This will, according to the regulations, always be the case – backdating under regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 cannot be applied to these cases, so someone claiming after the deadline day (even by one day) but on or before the final deadline could not, under any circumstances, be entitled from any day earlier than the deadline day.10

Deadlines and legacy termination

In the event that a UC claim is made on or before the deadline day, then tax credits will terminate on the day before the first day of UC entitlement and all other legacy benefits will run on for a period of two weeks, beginning with the first day of entitlement.11

In the event that no claim is made on or before the deadline day, then tax credits will terminate on the day before the deadline day and all other legacy benefits will terminate after a two-week run-on.12 This remains the case even if a claim is submitted after the deadline day.

Problem – appeals

The DWP’s position is that there is no right of appeal against a refusal to cancel a migration notice or to extend a migration deadline.13 It may be possible to argue that such refusals are challengeable once included in an ‘outcome decision’ as ‘building blocks’ to such a decision – advisers dealing with such cases may like to contact the author for advice.

Claimants seeking an extension of their deadline, or cancellation of a migration notice, would be well advised to put their request in writing as soon as possible before the deadline. If refused, and appealing is not indeed not an option, then the only challenge would be via judicial review, preceded by a pre-action letter as soon as the DWP refuses to make the extension or cancellation. The exact grounds would depend on the facts.

Problem – ‘closed’ claims The DWP’s managed migration internal guidance for case managers states that claimants are required to provide information and to verify aspects of their claim, such as their identity and housing costs. The guidance goes on to state that if the claimant fails to provide the information, their UC claim will be ‘closed’.14

In the law, there is no such thing as ‘closing a claim’15 – there is only a decision on a claim, whether that decision is to refuse the claim or to make an award. And there is no power to refuse a claim solely on the basis that someone has not complied with a requirement to provide information or evidence. In the event that someone does not provide information or evidence, the DWP should not simply make a negative inference (for example, that the person is not who they say they are) but should instead make a decision on all the information available to them (including the information on the UC form and the information passed to them by HM Revenue and Customs or by the legacy benefits as part of the managed migration process).

A claimant in this situation, and who is still within the 13-month deadline to make an any grounds revision request, should simply challenge the decision and provide the information required.

However, some claimants may not challenge such decisions within that time. In this situation, advisers may wish to consider a challenge on the basis of official error. DWP guidance directs decision makers to take an unlawful approach, and if by following that guidance the decision maker failed to have regard to the information available to them, then the decision may have involved official error. A subject access request could provide important evidence about the decision-making process in this situation. Advisers dealing with cases involving this issue may like to contact the author for advice.