Tales from the food bank

Sanctions

In our experience of cases at the food banks, most sanctions are not so much due to claimant non-compliance as due to the wrong work-related requirements being imposed or decision makers not following their own guidance and checking for good reason for non-compliance before imposing a sanction.1

‘A’ claimed universal credit (UC). They disclosed to their work coach they had experienced domestic abuse, providing a letter from their DV support worker as evidence. A was sanctioned for failure to attend a work-focused interview. The sanction was in place for nine months before they sought help from the food bank. As per regulation 89 of the Universal Credit Regulations 2013 (‘the UC Regs 2013’), A should have had no work-related requirements imposed for 13 weeks. Furthermore, DWP guidance states a victim of domestic abuse should not be sanctioned for an additional 13 weeks, with only voluntary work-related requirements imposed.2

There also seems to be difficulty in asking for revisions of sanction decisions. A UC sanction can be grounds for an ‘any time’ revision,3 but the work coaches responding to journal messages are often unaware of this, and respond as if the 13-month time limit for a late ‘any grounds’ revision applies. Numerous responses to revision requests state that it cannot be passed to a decision maker because the request is ‘out of time’. The advice here is to include within the revision request reference to the legislation that allows an any time revision of a sanction decision.

SMP and the benefit cap

‘D’ was working and earning on average £900 a month. D went on maternity leave and received statutory maternity pay (SMP) with a small earnings top-up. Once her SMP had ended, she claimed UC. The benefit cap was applied from the first assessment period. When she queried this, she was told it was due to her earnings being below the threshold in the 12-month period prior to her claim. SMP is paid weekly and therefore when someone receives SMP with their salary, their payments can differ each month, depending on how many weeks are in the month. D’s earnings in the 12 months before her claim, although always above the weekly national minimum wage amount, were under the monthly earnings threshold for exception from the cap in one month (February) because it has fewer weeks and so less SMP was paid in that month.

The basic problem here is the rules provide that earned income for any one assessment period is based on the ‘actual amounts’ received in that particular period (regulation 54 of the UC Regs 2013), and that the earning threshold for the ‘grace period’ exception for the benefit cap, is based on the conversion of the national minimum wage to a monthly amount in each of the 12 months taken into account (regulation 82). So, the claimant failed to meet the monthly February threshold figure, despite her SMP always being above the weekly amount of the threshold. CPAG considered that this constituted a breach of the claimant’s human rights. Specifically, not treating her SMP as satisfying the monthly threshold would be discriminatory under Article 14 of the European Convention on Human Rights (read with her Article 1 Protocol 1 rights) since all claimants (usually women) returning from maternity leave who (as is common) have received SMP only for at least one month of their maternity leave would be unable to rely on the UC benefit cap grace period.

In the above case, following a failure by the DWP to respond to a mandatory revision request, we sent a judicial review pre-action protocol letter. This challenged the unreasonable delay in deciding the mandatory reconsideration request and set out our argument regarding discrimination under the Convention.

We asked the DWP to revise and recalculate the decision based on this argument. D received a journal message stating the decision had been overturned and the monies owed would be repaid. The reply from the DWP legal team trusted the matter was now resolved and stated to read the journal messages. The benefit cap was removed and all money owed to D was repaid.

However, the discrimination was not actually tested before a tribunal or court, so while this was great for the client, it is likely an example of the DWP trying to avoid legal action to avoid setting a precedent.

Our legal team is interested in hearing from all claimants on maternity leave whose benefits are capped, not just those receiving SMP. If you have any such cases, please contact us at [email protected].

53-week year and housing costs

Schedule 4 to the UC Regs 2013 sets out the calculation for the housing cost element, including (at paragraph 7) what happens when there are rent-free weeks, which is the case in many social housing tenancies. The calculation assumes a 52-week year, but a year is not exactly 52 weeks; it is 365 or 366 days. This means there are always days in a year that are not covered by the calculation and the client is not paid housing costs for those days. In some years, there are exactly 53 Mondays and therefore 53 weeks for rental charge purposes. In years where the rental charge is over 53 weeks, the client misses out and must pay the shortfall themself.

The DWP has previously claimed that this is a landlord accounting problem, not a benefit calculation problem, and landlords can choose to move any arrears into a different financial year or absorb the cost themselves. There is a rightsnet thread that explores this idea thoroughly, wondering whether there are actually two issues, one for landlords and another for clients.4

In 2019, the DWP responded to a request by the National Housing Federation, seemingly accepting there was an issue with the calculation. It states: ‘we are currently considering whether this formulation around weekly rents, and potentially other weekly amounts in the Universal Credit calculation, should be amended.’5 However, since then, no changes to legislation or guidance have been made. With no changes pending, clients continue to be penalised by this policy.

Appeal hearings and appointees

If clients cannot independently manage their finances and/or benefit claim, they may have an appointee to deal with such matters. At a tribunal hearing, should the panel direct its questioning to the client or the appointee? The following examples illustrate the differing approaches taken in practice.

‘E’ had an appointee who lived over three hours away. E was not in regular contact with them, nor did E really need their support anymore. E was appealing their personal independence payment (PIP) decision, and the tribunal stated the hearing could not go ahead without the appointee attending the hearing and answering questions on behalf of E.

‘F’ had a stroke recently and struggled with communication and understanding. F attended their PIP tribunal with their appointee. The panel directed all their questioning to F and did not allow the appointee to answer questions for F.

What does the law say? A Practice Direction includes binding procedures on taking evidence from child, vulnerable adult and sensitive witnesses.6 It orders the tribunal to consider whether the vulnerable person must be questioned at all; they will only be questioned if it is necessary ‘to enable the fair hearing of the case’ and does not prejudice their welfare. It also directs the tribunal to reflect on how it questions a vulnerable person.

The Upper Tribunal, in RT v SSWP (PIP) [2019] UKUT 207 (AAC); [2020] AACR 4, reflected on the fact that, strictly speaking, a large proportion of appellants before the First-tier Tribunal count as ‘vulnerable’ adults. The tribunal should therefore record if it has decided to follow the Practice Direction and, if so, how it has followed it. In the later decision in JE v SSWP (PIP) [2020] UKUT 17 (AAC) (Bulletin 275, p12), the judge said that a ‘learning point’ from the case was that representatives making appeal submissions should, where possible, point out claimant special needs including needs about evidence giving.

F won their appeal. The tribunal may have considered the Practice Direction and determined that it was necessary for a fair hearing to question the client directly, possibly so the communication issues could be fully understood.

Conclusion

Unfortunately, DWP error (eg, in sanction decision-making), inflexible law (eg, regarding benefit cap and housing costs) and problems for ‘vulnerable’ claimants remain common, massively impacting the lives of benefit claimants, forcing them to attend the food bank more frequently and keeping families in poverty.