Universal credit and coronavirus

The LCW problem

Originally, regulations provided that both UC and employment and support allowance (ESA) claimants may be treated as having limited capability for work (LCW) if they are infected with COVID-19, are in ‘isolation’ because of COVID-19 or are caring for a child in their household who is so affected.1

However, from 30 March 2020, this no longer has effect in so far as it applies to UC.2 This change means that there is now, in UC, no direct equivalent of the ESA rule treating certain claimants affected by COVID-19 as having LCW. The reason for this change is, according to the relevant explanatory note, because the provisions are no longer necessary due to (other) new provisions (presumably this refers to the relaxation, during the coronavirus pandemic, of conditionality in UC).

Because a person who is treated as having LCW for new-style ESA under the above-mentioned coronavirus provisions is treated as such under those provisions and not under the Employment and Support Allowance Regulations 2013, a UC claimant who is also getting new-style ESA for this reason would still be in the all work-related requirements group for UC. S/he would technically, therefore, be at risk of receiving high level sanctions (albeit hopefully a small risk if decision makers use common sense and determine that the individual had good reason for ceasing paid work).

In addition, these claimants (and their partners) could not benefit from the work allowance for LCW or satisfy the work condition for the childcare costs element through LCW. This could potentially make it difficult for clinically extremely vulnerable claimants with a working partner to comply with current shielding guidance by minimising contact with their children.3 However, given childcare restrictions in place at time of writing, this may only, if ever, become a practical problem in future.

Claimants not automatically treated as having LCW under coronavirus regulations may arguably still be able to be treated as such under either of two pre-existing UC provisions.

Firstly, anyone prevented from working by a requirement to isolate her/himself as a result of infection or contact with an infected person may be able to be treated as having LCW under paragraph 3(1) of Schedule 8 of the Universal Credit Regulations 2013, which says:

‘(1) The claimant—

(a) is excluded or abstains from work pursuant to a request or notice in writing lawfully made or given under an enactment; or 

(b) is otherwise prevented from working pursuant to an enactment, by reason of it being known or reasonably suspected that the claimant is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination.’

Regarding the definition of ‘relevant infection or contamination’ at paragraph 3(2), the Health Protection (Coronavirus, Restrictions) (England) Regulations 20204 and their amending regulations were made under the Public Health (Control of Disease) Act 1984. Clearly, this would not cover anyone able to work from home but (depending on the facts) arguably could cover furloughed employees or receiving statutory sick pay (SSP) while shielding. This may be of greater relevance as testing and tracing increases.

Secondly, some claimants may be able to be treated as having LCW under paragraph 4 of Schedule 8 if they are suffering from ‘a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have LCW’. Advisers should remember that ‘substantial risk to health’ is to be evaluated in the context of the work which the claimant would, in light of her/his qualifications, skills and experience, be found capable of undertaking.5 If the work the claimant would be found capable of under-taking is not compatible with isolating or shielding (eg, the work could not be done from home), then this should be the context in which the risk is evaluated.

‘Claim closure’

In general, UC claimants will not need to attend job centres during the coronavirus crisis.

Recent caselaw may assist claimants who have their UC ‘closed’ for failing to provide evidence or information – including claimants who have their UC ‘closed’ for failing to attend identity verification appointments6 (though DWP is, at the time of writing, carrying out verification interviews by phone7). In PP v SSWP (UC) [2020] UKUT 109 (AAC), the claimant did not book a self-employment interview and was sent a message by the DWP to say that his claim had been ‘closed’. The First-tier Tribunal refused to admit the claimant’s appeal as the claimant had not been through the mandatory reconsideration process.

Judge Wikeley holds that the decision that the claimant was not entitled to UC (described by the DWP as ‘closing the claim’) appears, in fact, to have been made because the claimant had not shown that he met the income condition of entitlement to UC and that this, in turn, was because he had not booked his self-employment interview.

As the claimant had not provided the evidence, the Secretary of State may have been correct in drawing an adverse inference as to the income condition but, in the event that the claimant provides this information as part of his appeal, an appeal tribunal will be able to consider whether, in fact, the claimant met the income condition. On the facts, the mandatory reconsideration requirement did not apply as the ‘claim closure’ message to the claimant had not referred to it.

Worse off on UC compared to tax credits

CPAG has received reports of people submitting claims for UC, which ends their tax credit award, and then subsequently discovering that they are worse off. Judge Wikeley held, in GDC v SSWP (UC) [2020] UKUT 108 (AAC), that the date of a UC online claim is determined by the date on which the claimant, having completed the claim process, clicks on the ‘Submit claim’ button. Before that point (therefore), the conditions for termination of the tax credit award will clearly not have been met.8 For more on the issue of the termination of tax credits by a claim for UC, see the article 'Tax credits and coronavirus'.

NINo requirement

Advisers will be aware that people without a national insurance number (NINo) are able to claim UC. DWP advice remains that claimants should not apply for a NINo before they apply for UC if they do not have one already and should instead use the DWP internal process (as opposed to the NINo application telephone number) when making their UC claim to ensure their NINo arrives before their first UC payment is due.

The DWP internal process should still result in a NINo being issued, despite the NINo application telephone number carrying a recorded message stating that new NINo applications will not be accepted for three months from 17 March 2020.

Tell CPAG (email [email protected]) about:

• delays because a NINo application was made prior to the UC claim;
• the internal process not working as it should; or
• claimants unable to access a UC advance while waiting for their NINo.

Childcare costs

For a UC award to include a childcare element, the claimant must meet both the work and childcare costs conditions. The work condition requires that the claimant is in paid work (or treated as such) or has an offer of paid work due to start before the end of the next assessment period. Note that 'paid work' is defined, in regulation 2(1) of the Universal Credit Regulations 2013, as 'work done for payment or in expectation of payment'. A furloughed worker is, by definition, not doing any work.

A claimant who is not currently in paid work may still meet the work condition if s/he:

• will soon take up an offer of paid work after a period of unemployment or furlough; or
• can be treated as in paid work; this could include claimants who are isolating and receiving SSP, or who were recently furloughed or laid off.9

In order to meet the childcare costs condition, the claimant must have paid charges for relevant childcare (the definition of ‘relevant childcare’ includes the requirement that the care in question has been ‘provided’).10 Given that, at the time of writing, only children of key workers and ‘vulnerable’ children can access childcare, many people will not be able to satisfy the childcare condition despite continuing to make payments to their childcare provider.

A retainer paid to a childcare provider is not eligible for reimbursement unless it is actually an advance payment for childcare costs and the relevant childcare is used within the following two assessment periods.11

Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.