Universally ineffective?

Introduction

UC awards cannot be changed for any reason or at any time. In order to supersede an award, the circumstances must fall within a permitted ‘ground’ for supersession. Once a ground for supersession has been identified allowing the award to be changed, the next question is the date from which the change should occur: its ‘effective date’. The effective date can change depending on which ground is relied upon to initiate the supersession. Judge Mesher in DS v SSWP (PIP) [2016] UKUT 538 (AAC), reported as [2017] AACR 19, found that when multiple grounds are available and the change is advantageous, the claimant should be able to rely upon the ground which is most beneficial to her/him.

As the following cases from CPAG’s Early Warning System show, DWP decision making on advantageous supersessions is not always correct and, as a result, claimants have been losing out on their entitlement to arrears of UC.

LCWRA element

My client had limited capability for work (LCW). They completed a UC50 in July 2020 and had a phone assessment in January 2021. They now have limited capability for work-related activity (LCWRA) but the element has only been added from February 2021. Is that correct?

As the claimant already had LCW, this means the ‘relevant period’ before the element is awarded, as required by regulation 28 of the Universal Credit Regulations 2013, does not come into play.

There are likely to be two potential available grounds for supersession:

1. Change of circumstances
If the claimant initiated the supersession by saying her/his circumstances had changed due to a new health condition or a deterioration, then one potential ground would be a ‘change of circumstances’. The change of circumstances ground is provided for by regulation 23 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (the ‘Decisions and Appeals Regulations’), and regulation 35(1) and Schedule 1 prescribe the various dates a supersession on this ground may take effect from. The effective date depends on whether the change was notified promptly.

• Paragraph 20 of Schedule 1 states that when the change is advantageous and it is notified before the end of the assessment period in which it occurs, then the supersession should take effect from the first day of that assessment period.
• If the change is notified after that assessment period has ended, then paragraph 21 stipulates the supersession should take effect from the beginning of the assessment period in which the DWP is notified. However, if the claimant explained in her/his application why s/he was applying late, has a good reason for the delay, could not apply sooner and is reporting the change within 13 months of its taking place, then the decision maker may, if it is reasonable to do so, use the effective date set by regulation 36 instead. That allows for a supersession about a late notified change to still be effective from the beginning of the assessment period when the change happened.

2. New medical report

Less commonly, a claimant may rely on regulation 26, which allows for a supersession to take place on the ground that the decision maker has received medical evidence from a healthcare professional. As opposed to regulation 23, supersessions on the ground of a new medical report can happen without needing to demonstrate that there has been a specific change of circumstances. When the new medical examination took place following a request by the claimant, a supersession on this ground takes effect from the date the application is made.1

Care does need to be taken where the new medical report is not sent out following an application by a claimant, but simply as part of a scheduled review. In such a case, the DWP may say the effective date runs from the start of the assessment period in which it makes its decision (regulation 35(9)(b)). However, in such cases, if a claimant had completed a UC50 several months previously, then s/he might want to argue that this contained the disclosure of a change of circumstances and s/he was therefore entitled to have the supersession take place from the start of the assessment period in which the UC50 was returned.

Common problem

The Early Warning System has seen numerous cases where the DWP appears to be relying on regulation 26 and the effective date appropriate for a DWP-initiated supersession (assessment period containing decision), even when the supersession has been initiated by the claimant on a different ground with an earlier effective date. If this is the case and the claimant has missed out on arrears of the LCWRA element as a result, then this should be challenged.

Carer element

A couple have been on UC for years and one of them has been awarded personal independence payment (PIP) with effect from six months ago. The partner has a carer’s allowance (CA) award backdated for this period but the DWP will only add the carer element from now as they were ‘late in reporting the caring responsibilities’. They have missed out on six months of the carer element and the DWP won’t revise. Is it worth appealing?

The couple have applied for a supersession of their UC award on the grounds that there has been a relevant change of circumstances. There is now an award of PIP and they are entitled to the carer element in accordance with regulation 29(1) of the Universal Credit Regulations.

The usual rule about the effective date for supersession on the ground of change of circumstances has already been discussed above – ie, when the change is advantageous to the claimant, then the supersession should take effect from the first day of the assessment period in which the change occurred, unless it is notified late and an extension is not granted. However, that rule, which is contained in paragraph 21 of Schedule 1 of the Decisions and Appeals Regulations, is made subject to the exception of paragraph 31. Paragraph 31 states that where a family member becomes entitled to another relevant benefit (such as CA2) so that it alters the amount of UC, then the supersession should take effect from the beginning of the assessment period in which the relevant benefit entitlement arises. Paragraph 31 does not specify that the change needs to be reported within one month. The supersession to add the carer element should take effect from the first day of the assessment period in which the CA award started.

What if the CA predates the UC award?

We have seen a number of cases where CA has been taken into account as income from the beginning of a UC award but without any carer element. If this is the case, then the initial award decision under section 8 of the Social Security Act 1998 (and any subsequent decisions) should be revised rather than superseded.