Important update
The address for DWP social security pre action correspondence changed in December 2023. The templates have been amended and should be downloaded afresh every time you need them to ensure you are using the most up to date version.
Please do not send any of the CPAG template pre action letters to DWP Legal Advisors either by post or by email.
Warning: these letters are for advisers
Please don't send these letters unless you have an adviser acting for you.
If you are a member of the public with a problem you feel could be resolved using one of these letters, it is important to seek advice to confirm whether judicial review is appropriate.
If you do not have an adviser to act for you, you may be able to find one on advicelocal.uk
Only use in England and Wales
If you intend to use any of these letters in Scotland, please use with caution. The pre-action protocol does not apply in Scotland, so changes will be needed. Find out more about some of these changes.
Migration to universal credit templates
Managed migration
Please get in touch if you have a client who has received a managed migration notice and there are different grounds for this to be cancelled but DWP have refused.
Bereavement and moving to universal credit
Transitional SDP element
Universal credit templates
Advances
Refusal of advance
Failing to offer advance
Amount of advance
Rate of repayment
Benefit cap
Bereavement
Claimant commitment, work-related requirements and sanctions
These letters can be used before or after a client has been sanctioned as a result of inappropriate UC conditionality. If they have not been sanctioned, references to sanctions will need to be removed from your letter.
Before using the letters below:
Your client should 'ask for a second opinion and ask for their claimant commitment to be reviewed' via their UC journal. The DWP stated in correspondence to CPAG (05.05.22):
"the procedure which applies when a claimant does not agree with work-related requirements imposed on them in their claimant commitment is to request a second opinion and ask for their claimant commitment to be reviewed. If the second opinion agrees that the requirements are unreasonable the claimant will be offered a new claimant commitment and asked to accept it. If the second opinion agrees that the original requirements are reasonable, the claimant can accept the commitment or refuse to accept it. In the latter case, the award would be terminated, and the claimant notified of that decision and their rights to a mandatory reconsideration and appeal."
Note: DWP Guidance 'Claimant commitment not accepted (V5)' suggests that "If the second opinion is requested within the cooling-off period, the cooling-off period ends." Though there is no obvious legal basis for this.
CPAG are interested to know if:
a) claimants are told they have the right to a second opinion, and
b) claimant commitments are changed following second opinions in practice.
Note: where a claimant has not accepted a revised claimant commitment (ie, not in respect of a new claim) the consequence of failure to accept is a sanction, as confirmed by the DWP's representative in FO v SSWP (UC) [2022] UKUT 56 (AAC) at para 14. The ADM limits this to where a claimant has not attended a commitments meeting, and does not include that the seeking of a second opinion will end the cooling-off period:
J1036... "Only if the claimant attends the interview as required but refuses or fails to accept the new commitments can the DM consider terminating the award of UC after a cooling off period."
CPAG are interested to know if:
c) claimants are advised that seeking a second opinion will end their cooling off period and that if the second opinion upholds the first opinion, if they do not accept the new commitments, their award will be terminated, and
d) whether seeking a second opinion within the ‘cooling-off period’ in practice ends the ‘cooling -off period’
Template letters
Note that there is increased conditionality for parents of 3-12 year olds from 30 October 2023 - however as at 17 November 2023 DWP guidance had not yet been amended and the below letters have not therefore been changed. Further changes for other claimants are also expected in the spring 2024 budget.
Face-to-face appointments
If your client is waiting for a Work Capability Assessment and being called into the Jobcentre in person every week and this is inappropriate due to disability, DWP also stated (05.05.22):
"I can confirm that claimants awaiting a work capability assessment should have their claimant commitment tailored to their individual needs including the frequency, length and method of interventions."
As above, ask for second opinion and let CPAG know how DWP respond. A part of this, request reasonable adjustments if it is inappropriate to require your client to attend JC+ in person due to their disability. You can use our template: Reasonable adjustments request example re face-to-face JC+ appointments. If DWP say no, please seek advice [email protected],
Administrative Earnings Threshold
The Administrative Earnings Threshold increased on 26/09/22 - ie, the amount a claimant has to earn such that they are not expected to look for additional or higher paid work. DWP newsletter Touchbase stated on 23/09/22:
"It is important to understand that most claimants affected by the AET rise will already be in work and some may already be working as much as they can, depending on their individual circumstances. Initial meetings with work coaches will be to discuss what is reasonable and may include work preparation, to support claimants in preparing to increase their earnings when they are able to. Claimants will be able to agree an individual claimant commitment which reflects their circumstances."
Please contact [email protected] if your client is already working as many hours as they can, yet is being required to look for more.
Accepting the claimant commitment
Please tell us how the DWP, HMRC or the relevant local authority respond
Email [email protected] This helps us keep the letters up to date and effective for other advisers.
Claims, backdating and 'claim closure'
Telephone claims
Note: There is a new ‘Change from an online account to a phone claim’ to-do in the updated list of to-dos. JR134 will need amending to take account of this.
Backdating
Please get in touch if you have a client who has been refused backdating as "Evidence to support the backdating request must be received within one calendar month of a claimant making their claim to Universal Credit.” [email protected]
Claiming in advance
Claim or award 'closed'
Please get in touch if you have a client whose UC award has been 'closed' following a request to re-verify their ID: [email protected]
These letters can be used when a client's claim or award has been 'closed' and they include 'failure to advise of appeal rights'.
Requesting mandatory reconsideration
A mandatory reconsideration request should also be made as 'closing' a claim or award is an appealable decision (see PP v SSWP (UC) [2020] UKUT 0109 (AAC) for confirmation. In this case the Secretary of State had further not advised of appeal rights, and mandatory reconsideration was not required to exercise the claimant's right of appeal).
Your client can also re-claim UC, but note before they do so, they should download any documents relevant to their mandatory reconsideration request / appeal and take screen shots of their UC journal, as they are likely to lose access to their original journal as soon as a new claim is made.
Delay
Decision making delay including mandatory reconsideration
New claims and changes of circumstances
Mandatory reconsiderations: refusal and delay
Note: where the need to seek revision before appeal applies (not HB - see JR145 below), there is a right of appeal against the decision to refuse to revise for official error (PH and SM v Secretary of State for Work and Pensions (DLA)(JSA) [2018] UKUT 404 (AAC)). In order to succeed in that appeal you need to show:
- That your application for revision (ie the application they have refused) specifically mentioned official error; and
- That the decision itself was made in consequence of official error.
However, where your client has not been advised of their appeal rights, or has been told that they do no have a right of appeal, or your client is homeless or destitute, you may also consider sending a pre-action letter.
Note: When working out whether a delay is 'unreasonable' consider that "the average (median) waiting times for mandatory reconsiderations are 57 calendar days for PIP, 51 calendar days for universal credit, and 10 calendar days for employment and support allowance (ESA) work capability assessments." Tom Pursglove House of Commons written answer 31/10/22
Deductions
These letters can be used to challenge the level of deductions from UC where your client is experiencing financial hardship.
JR55 Refusal to reduce deductions for fines below 30% (removed) This matter was decided in the claimants' favour by the High Court and new regulations made in response come into force on 29/10/10 which set the rate of recovery of Magistrate's court fines at a flat rate of 5%. The explanatory memorandum to SI.No.1077/2021 explains - 'In response to a recent ruling by the high court, the Department has amended its policy on making deductions for court fines at a rate of 5 per cent of the applicable standard allowance. This amendment clarifies that court fine deductions from universal credit will be set at a one flat rate of 5 per cent per cent of the applicable universal credit standard allowance, removing the current minimum rate of 5 per cent and maximum rate of £108.35. This amendment will align legislation with the current policy.'
Note: DWP have discretion to reduce total deductions to less than 25% of the standard allowance. Peter Schofield confirmed on 11/01/23 to the HoC Work and Pensions Committee – Oral evidence on DWP’s Annual Report and Accounts 2021-22 that if a claimant is experiencing hardship, and requests a reduced percentage to payback, this will be granted. Please contact CPAG [email protected] if DWP refuse to reduce total deductions to less than 25% and experiencing financial hardship which has been explained to DWP for assistance adapting the above templates if needed.
Judicial review litigation
Please let us know if DWP refuse to exercise discretion in response to these letters. Please also let us know if DWP refuse to reduce the level of deductions for a UC advance in response to JR33 or otherwise.
Elements: housing costs element
Bedroom tax following bereavement
These letters apply to circumstances where a claimant on legacy benefits who was part of a couple previously exempt from the bedroom tax, suffers a bereavement which results in their having to make a new claim for UC, and is immediately affected by the bedroom tax. This is often the case where the client was a carer for the person who has died.
You may also wish to check if their carers allowance has run on but the carer element has not been included in their UC. See notes under ‘Elements: other elements’.
Not the named tenant
Joint tenant has left
Managed payment to landlord
Housing costs element refused
No recourse to public funds
Please get in touch if your client has been awarded 50% rather than 100% of their eligible housing costs because they have a partner who is not named on their tenancy living with them and that partner has no recourse to public funds. CPAG may be able to assist with a mandatory reconsideration template, or a JR template to challenge the delay in providing a mandatory reconsideration notice on this issue. [email protected]
Elements: other elements
LCW / LCWRA element
JR137 Failure to pay claimant a LCWRA element from start of their UC award when they were previously in the ESA support group, ESA stopped but entitlement to NI credits for LCWRA continued until their UC claim. This letter has been removed as ADM Chapter F5 was amended in June 2023 following DWP correspondence with CPAG.
If you have a client with this issue after June 2023, please contact [email protected]
Child element
JR111 Failure / refusal to include child element in UC because child benefit not received by claimant has been removed. Please contact [email protected] if you have a client in this position.
Carer element
JR1 UC refusal of carer element in line with 8-week carer’s allowance run-on after a death: this letter has been removed as the ADM has now been amended and it is therefore appropriate to request a mandatory reconsideration and appeal if necessary:
ADM 6042 now says:
'F6042 Where a new claim to UC is made by a carer and:
- CA is in payment; and
- the severely disabled person, in respect of whom the care was provided, died before the claim to UC was made the carer will be entitled to the carer element for any AP where the CA is still in payment on the last day of that AP. [1]
[1] UC Regs, reg 29(1), 30(1) & D&A Regs, Sch 1, para 20'
SDP element
All elements
Fraud by a third party
Note: there is a right of appeal against a decision to terminate legacy benefits (although not immediately for tax credits) and as judicial review is a ‘remedy of last resort’ where there is a right of appeal, this must be used unless that right of appeal can be said not to be ‘effective’ (for example if your client is homeless and/or destitute as the legacy benefit was their only income).
Some success has been reported by advisers appealing termination of legacy benefits to the First-tier Tribunal where claimants have made defective claims for UC. Please feel free to use the arguments in the template above to support any mandatory reconsideration request or appeal.
If you have sought a mandatory reconsideration of the decision to terminate legacy benefits and specified a time limit for a response from the DWP / HMRC and explained why this time frame is reasonable in the circumstances, and no mandatory reconsideration notice has been received, you may wish to include an additional ground of 'failure to provide a decision within a reasonable time' which you can find in any of the template letters challenging mandatory reconsideration delays under ‘Decisions making delay including mandatory reconsideration’ on this page.
Income
Earnings
Johnson (non-banking day shift) DWP advice: Claimants should post something on their UC journal asking for an RTI dispute to be raised and for the RTI dispute team to apply reg 61(6) UC Regs 2013 so that one monthly wage is assigned to a different assessment period. While it is not an RTI dispute it appears to be the RTI dispute team who will deal with re-assignment. If having posted on their journal, the payment is not reassigned within a reasonable period (not defined) please contact [email protected]
Work allowance
Fostering allowance
Migrants and universal credit
EU settled status
JR8: Refusal of UC when has indefinite leave to remain under EU settlement scheme - this letter has been removed. You, or your client, can use the following template to make a mandatory reconsideration request instead: EU settled status MR request
EU pre-settled status
For pre-settled status after 6 May 2019, please refer to our test cases page on Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53 for information on CPAG's pre-settled status legal challenge. If your client has any other qualifying right to reside seek a mandatory reconsideration of the DWP’s decision to refuse UC without consideration of your client's alternative right to reside.
If your client has pre-settled status, is destitute or has an alternative R2R, and their UC claim has been stayed behind SSWP'S appeal in SSWP v AT, see our test case page on SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC); SSWP v AT [2023] EWCA Civ 1307 for further resources. The Supreme Court refused the Secretary of State permission to appeal SSWP v AT on 07/02/24. The successful Court of Appeal decision is now final. The resources on this page relating to AT have therefore mostly been removed pending updates.
Habitual residence test
Note: all letters will need editing to confirm your client has a qualifying right to reside, ie, if s/he is not British or Irish that s/he has either:
- EU Settled Status, or
- EU Pre-Settled Status and a qualifying Right to Reside under the EEA Regs, or
- applied to the EU Settlement Scheme and is awaiting a decision and has a qualifying Right to Reside under the EEA Regs, or
- leave to enter or remain in the UK other than pre-settled status or leave to enter as a holder of an EUSS Family Permit of Travel Permit
- non-EEA leave to remain
Please get in touch if you have a client whose UC has been suspended for an unreasonable period (particularly if this is due to ID reverification), a template may be available: [email protected]
Refugees and their partners
Please note that letter JR 127 can be edited for use with Ukrainian refugees with reference to The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2022, and for Sudanese refugees with reference to the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2023 (see ADM Memo 10/23 for DWP guidance). If you are unable to make these changes, please contact [email protected] and you may be able to refer your client to CPAG.
National insurance numbers
UC NINo gatekeeping or delay
Our letter templates on this issue have been removed following CPAG's litigation on the UC NINo requirement, see our test cases page: R (Bui) v Secretary of State for Work and Pensions; R (Onakoya v Secretary of State for Work and Pensions [2022] UK 189 AAC; [2023] EWCA Civ 566 and the subsequent coming into force of the Social Security and Universal Credit (Migration of Tax Credit Claimants and Miscellaneous Amendments) Regulations 2024 on 01/04/24, which makes having a NINo a requirement to receive a UC Advance.
Note: The DWP NINo process has changed. The DWP advised CPAG on 23/11/23 as follows:
“The DCI1 form (in electronic form: EDCI1) is still in use. This form alerts the NINo team to initiate the NINo application process for a customer.
The NINo team have now developed a digital NINo application. On receipt of the EDCI1, the NINo team send a text message to the customer containing a link to an on-line NINo application. Using this link, the customer can complete their details and upload copies of their identity documents; the process takes around 10-15 minutes.
This digital process replaces the previous clerical NINo application which was completed at a face-to-face appointment, thus saving time and effort for the customer as they no longer have to attend a NINo interview.
The journal entry about the text message is to make the customer aware that they will be contacted by text to avoid any concerns about the authenticity of the text, and to encourage the customer to complete the link to apply for a NINo as soon as possible.
DWP has amended its internal guidance for staff to reflect these updates to the NINo application process, however work is currently ongoing to update the publicly available version on Gov.uk”
Overpayment recovery
Additional legitimate expectation ground
In addition to the arguments made in JR60 and JR61 (above) a 'breach of legitimate expectation' argument may be made where a claimant has repeatedly checked with the DWP whether their award is correct, has been wrongly advised by the Jobcentre, and has relied on the JC+ advice to their detriment, see R (K) v SSWP [2023] EWHC 233 (Admin). However, where there is no repeated checking by a claimant that the award is correct, there may still be an A1P1 ECHR breach, see AKAREVIC v. CROATIA (European Court of Human Rights) (Application no. 48921/13) in particular paras 58- 64.
The Public Law Project has kindly shared the above additional legitimate expectation grounds. These grounds have been and can be included in the other templates above, or can replace content as appropriate. If you are including this content additionally, make sure the 'law and policy' in these grounds is included in your letter (but not duplicated). The grounds rely on both R(K) v SSWP and Akarevic v Croatia.
Seek assistance if needed [email protected].
Payments and suspensions
Payments
Suspensions
Students and 16 or 17 year olds
Note about letter JR 93: from 15 December 2021 as new regulations provide that for claims for UC made on or after 15 December in order to be able to get UC whilst 'receiving education', the claimant must have LCW on a date before starting to receive education. The intent is to close off the so-called 'workaround' of someone already receiving education applying for ESA (and getting LCW) before applying for UC. The explanatory memorandum to the regulations states:
'2.1 The purpose of this instrument is to amend one of the exceptions to the requirement to not be receiving education which determines entitlement to Universal Credit (UC). This amendment provides that a person who is entitled to attendance allowance (AA), disability living allowance (DLA), child disability payment (CDP) or personal independence payment (PIP) must have been determined to have limited capability for work (LCW) before the person starts undertaking a course of education.
2.2 This amendment closes off a ‘workaround’ whereby an existing disabled student makes a claim to new-style (contributory) employment and support allowance (NS ESA) in order to be referred for a work capability assessment (WCA) so that, if the person is subsequently determined to have LCW, they could then claim and be entitled to UC - but this is contrary to the policy intent, as set out below at paragraphs 7.1 and 7.2.'
JR99 Existing UC award terminated without referring for a WCA when became a student - this letter has been removed please get in touch if you have a student whose UC award and course of education started before 5 August 2020.
See also the mandatory reconsideration template
9. Someone aged 16 or 17 is refused UC despite waiting to be referred for a WCA - this template can be used when a 16 or 17 year old is refused UC despite having provided evidence of having LCW. Note that this template has been drafted on the basis that the claimant is not receiving education. (last updated March 2022)
Work capability assessments
Delay / refusal to carry out WCA
Insufficient reasons for WCA decision
Students
If cbESA has been claimed as a route to UC for a disabled student see note above under 'Students and 16 or 17 year olds'.
JR99 Existing UC award terminated without referring for a WCA when became a student - this letter has been removed, please get in touch if you have a student whose UC award and course of education started before 05 August 2020
JR54 Claim refused from a student in receipt of PIP without carrying out a WCA to establish whether they have LCW (last updated Aug 2019) Removed as this issue has been unsuccessfully litigated.
Not treated as having LCWRA
JR137 Failure to pay LCWRA element from start of UC award claim when was previously in ESA support group, ESA stopped but entitlement to NI credits for LCWRA continued until UC claim (last updated Oct 2022). This letter has been removed as ADM Chapter F5 was amended in June 2023 following DWP correspondence with CPAG.
If you have a client with this issue after June 2023, please contact [email protected]
Get support from CPAG
For support using the template letters above and to have your letter reviewed before you send it please contact [email protected].
Sending the letters
Save the pre-action letter as a PDF and send it with your client's signed authority to:
DWP: send your letter by post to the DWP and by email to the Treasury Solicitor. See the relevant template letter for details of where to send it. Please seek advice from [email protected] if no response is received within 14 days.
HMRC: send it by email to: [email protected]
Local authority: send it by email: FAO legal department
Tell us the response to your pre-action letter
Please let us know how DWP, HMRC or the relevant local authority respond as this will inform future templates. Email us at [email protected]
The DWP might respond to your letter along these lines: "Judicial review is inappropriate. However the decision has been changed on mandatory reconsideration”. This is a success for your client.
If you have not received a response within 14 days (or the lesser time requested due to your client's circumstances) contact CPAG for advice [email protected].
If the matter remains unresolved, we may be able to refer you to a law firm who can issue judicial review proceedings.
Tell us what you think
We report regularly to our funder about whether you have found these template letters useful. Please send us your feedback to help us to continue to fund the project. Email us at [email protected].