UC managed migration rules

Introduction

Late in July, regulations concerning migration to UC were (finally) published.1 The regulations provide rules mainly concerning:

• the ‘managed migration’ pilot that commenced in July and is due to run for up to 18 months; and
• the ‘transitional SDP amount’ that is intended to apply to certain severely disabled claimants who ‘naturally’ migrate to UC, ostensibly to compensate for loss of the severe disability premium.

This article considers the rules about the managed migration pilot and certain other provisions associated with that. Read 'The transitional SDP amount’ article (Welfare Rights Bulletin 272, Oct 2019)

The managed migration pilot

The regulations are mainly concerned with this pilot (called ‘Move to UC’), which began on 24 July and will be testing ‘managed’ migration to UC for claimants currently in receipt of legacy benefits. The pilot is limited geographically: initially it applies only in the Harrogate area although may be extended to other areas. It is also limited regarding the numbers of claimants it can affect: it is limited to 10,000 awards of UC made under the rules.2 Following the pilot, it is expected that rules will allow the roll-out of managed migration, but these rules could differ from the current rules, depending on the outcomes from the pilot. Official guidance about the pilot and process has been issued. DWP, 3

So the rules on managed migration should be regarded, for now, as solely about the pilot and subject to change for when the managed migration process is rolled out, currently expected to take place between November 2020 and late 2023. It should also be noted that powers in the rules providing for termination of legacy benefit even where someone, although subject to the process, has not claimed UC, will not be used in the pilot. Of course, it remains possible that such rules will be used in the national roll-out.

The managed migration process

The regulations provide for managed migration to work as follows.

• The process will start with the issue of a ‘migration notice’ informing the claimant (and any partner) that legacy benefits are to terminate and that s/he ‘will need’ to claim UC. The claimant is then a ‘notified person’. The DWP can decide to cancel the notice.4 In the pilot, the DWP will not in practice threaten the termination of legacy benefit entitlement and will instead seek to encourage the claimant to claim UC.5
• There will be no automatic claim or entitlement to UC. The rules make no such provision. The usual UC claim rules will apply. A ‘deadline day’ will be specified by which the UC claim must be made. That day must at least three months from the notification but can be extended if there is ‘good reason’(not defined, but could include illness, hospital admission or emergency) to do so. Legacy benefit entitlement terminates from the date of the UC claim or, if not made, from the day before the deadline day (with a two-week run-on for housing benefit (HB)). However, if the claimant nevertheless makes a claim for UC before the ‘final deadline’ (defined as the last day of what would have been the first assessment period had the award started on the deadline day– ie, a month from the deadline day), then (despite the termination of legacy benefit) UC can be awarded so as to start on the deadline day.6
• Where UC is claimed and then awarded under the managed migration process, a ‘transitional element’ as part of the UC maximum amount will provide ‘transitional protection’ where the UC is worth less than the legacy benefits. Where a claimant transfers from tax credits with more than £16,000 in capital, a one-year disregard of the excess (a ‘transitional capital disregard’) will allow her/him to qualify for UC.7
• Transitional protection can only apply if UC is claimed on or before the ‘final deadline’. If the decision on the claim is that there is no entitlement to UC, then no transitional protection is to be included in any subsequent award of UC (ie, on a new claim) except certain cases involving excess earnings.8 (This provision will be of concern in any case where the DWP decides there is a ‘failed claim’ (ie, no entitlement) – for example, following failure to attend the initial interview with the work coach.

Transitional protection

‘Transitional protection’ can apply where a claimant migrates to UC via the managed migration rules.9 (Note: transitional protection is a feature of managed migration only.) The basic idea is that a managed migrated claimant who would be entitled to less under UC than s/he was under her/his legacy benefits will get the difference made up in her/his UC.

The main form of transitional protection is the inclusion of a ‘transitional element’ as part of the UC maximum amount. In tax credit cases where the claimant has capital in excess of £16,000, transitional protection can also take the form of the ‘transitional capital disregard’ (see above).

Transitional protection can only apply where a notified person makes a ‘qualifying claim’ under the managed migration rules – ie, on or before the ‘final deadline’.10 So claimants who fail to claim under the managed migration provisions will not be entitled to transitional protection, even if they do eventually otherwise claim UC. Note the following in paragraph 7.5 of the Explanatory Memorandum to the regulations:

If claimants contact the Department after the deadline date but within one month of their existing benefits ending, their UC claim will automatically be backdated to the deadline date and Transitional Protection can be applied to the UC award. If a claimant does not contact the Department until after a month after the deadline date they were given, their claim will not be considered as a managed migration claim which means their claim will be assessed under the UC regulations without the consideration or award of Transitional Protection.

Where a claim is made under the managed migration rules, the Secretary must determine whether a transitional element (and transitional capital disregard) should apply. However, this will not apply where the claimant was single for the purposes of her/his legacy benefit and is now claiming as a couple, or was a member of a couple but is now single or in a different couple.11

The transitional element

A transitional element is included as part of the UC maximum amount if, on ‘migration day’ (the day before UC entitlement would begin on the claim), the total amount of any awards of legacy benefit (the ‘total legacy amount’) is greater than the amount of UC the claimant would otherwise be entitled to (the ‘indicative UC amount’). The legacy benefits considered are income-related employment and support allowance (ESA), HB, income support (IS), income-based jobseeker’s allowance (JSA), child tax credit and working tax credit.

As UC is paid monthly, the total amount of legacy benefit is converted to a monthly amount (for tax credits, the daily rate is multiplied by 365 and divided by 12; for legacy benefits, the weekly rate is multiplied by 12 and divided by 52; HB can be modified to take account of rent-free weeks).12

Regarding the benefit cap, the regulations provide that unless exemption from the UC benefit cap applies (this includes the exemption for earnings), where the claimant is not entitled to HB or her/his HB is subject to the cap, then if her/his total benefit entitlement (ie, of all benefits taken into account regarding the cap – not just legacy benefit) exceeds the UC benefit cap that applies, then the total legacy amount is reduced by the excess (minus childcare costs) before the transitional element is calculated.13 In short, in benefit cap cases the total legacy amount used is first reduced to the level of the UC benefit cap.

The initial amount of the transitional element is the amount by which the total legacy amount exceeds the indicative UC amount. If the total legacy amount does not exceed the indicative UC amount, no transitional element will apply. If the indicative UC amount is nil due to the claimant’s earnings, the initial amount of the transitional element is the total legacy benefit amount plus the excess earnings. A subsequent revision or supersession can revisit the calculation, including where, subsequent to migration, a decision has been made regarding the legacy benefit entitlement on revision, supersession or appeal.14

In the second and subsequent assessment periods of the UC award, the transitional element can be reduced, but only by the amount of increases of other UC elements in the maximum amount (including those awarded for the first time), apart from the childcare costs element. Thus, increases in income, for example, will not reduce the transitional element in itself but would be taken into account for the overall UC award in the normal way. The transitional element ends where there is a drop in earnings for three months to a level below the threshold in the UC conditionality rules, where a couple separates or a new couple forms, or where the UC award terminates. No transitional protection can apply to a subsequent award, except where the UC is terminated because of excess income and UC restarts within three months of what would have been the last assessment period had the award not ended.15

Students, the self-employed and run-on

The regulations make some other provisions about specific claimants, associated with managed migration but not in all cases exclusively so.16

• Full-time students who are ‘notified persons’, but who (because of their study) would normally be unable to get UC, are able to get UC if transferred via managed migration.
• Self-employed claimants who are notified persons and, from 23 September 2020, any self-employed person who migrates to UC will be able to benefit from a 12-month exemption to the minimum income floor (via the ‘start-up period’ rule) even if, in fact, they started their self-employment more than 12 months ago; current UC claimants who start self-employment will also be able to benefit from this exemption.
• A two-week run-on of IS, income-based JSA and income-related ESA following a claim for UC will apply, whether made under managed migration or not, from 22 July 2020. (However, in the managed migration pilot ‘hardship payments’, specifically provided for in the context of the pilot,17 are to be used to achieve the same effect before that date.)

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