Early Warning System e-bulletin - July 2021

15 July 2021
July 2021

CPAG collates case studies in our Early Warning System to demonstrate the impact of changes in the social security system on the wellbeing of children, their families and the communities and services that support them.

In this edition of the e-bulletin, we look at the top issues emerging over the past three months, and provide an update on assessment periods.

1.    DWP Failures
2.    PIP Assessments
3.    Assessment Periods

Tell us what’s happening in your cases by completing an online form or emailing the Early Warning System.

1. DWP failures

In recent months, EWS has seen a number of submissions relating to issues with the DWP's handling of claims and awards. This is not a new issue, but it may be that we are seeing more submissions on this as lockdown eases and the DWP returns to "business as usual", raising the expectation that claimants will receive an appropriate level of service. This could be because, as businesses open up and fewer people are impacted by shielding, isolation and sickness, there is perceived to be less pressure on the DWP, and delays and poor service that would have been tolerated during the pandemic are no longer considered acceptable.

Delays In Decision Making

Some of the EWS submissions received relate to frustrations such as long delays with little explanation and seemingly no way to move the process along. For example, we heard from an adviser whose client had been waiting over three months for a decision on her universal credit (UC) claim. The adviser was told that the claim was with the risk and review team, due to a previous fraudulent claim in the client's name. However, the DWP were unable to provide any information when contacted for updates and there was no way of contacting the risk and review team directly to check on the progress of the claim, or see whether the client could provide any information that would speed up the process. In another submission, a non-EEA national with indefinite leave to remain had been waiting for 9 months for a claim for carer's allowance to be decided. The DWP stated that the delays were "due to Brexit", but offered no further explanation. In cases like this, where the DWP has failed to take action within an appropriate time, it can be very frustrating for claimants and advisers, as an appeal is not possible as no decision has been made. If your client is in this position, you should  consider sending a pre-action letter, in accordance with the pre-action protocol for judicial review. Templates on delays on the DWP's part can be found on CPAG's JR Project page, and these can be adapted to suit your client's situation.

Incorrect Advice

Other cases submitted to the EWS are cases where the DWP has provided incorrect advice. In one case, an employment and support allowance (ESA) claimant, who was in the support group and also received a severe disability premium, had his housing benefit award terminated last year with no explanation. He was told by the DWP that he would have to wait three months for the limited capability for work related activity element to be included in his award if he claimed UC. This was incorrect. As he was in the support group for ESA when he made his claim for UC, the LCWRA element should have been included in the claimant's UC award from the outset (reg 28(5)(b) of the Universal Credit Regulations 2013). The DWP's incorrect advice left the claimant too worried to claim UC and his housing costs were not being met until he sought advice a year later. Another adviser told us about her clients who were receiving ESA and moving to a new local authority area. They told the DWP that they were moving into a property bought for them by their family and did not need to claim housing benefit. They were incorrectly told that they would need to claim UC following the move, as the ESA award would end. Fortunately, they sought advice before doing this, as the adviser is assisting them in getting the severe disability premium added to their award, which would not have been possible if they had claimed UC.

Where your client has received incorrect advice, the priority is giving them correct advice and ensuring that they have the right award as soon as possible. However, some claimants will have experienced financial losses as a result of incorrect advice from the DWP and in these cases the adviser should attempt to claim financial redress under the special payments scheme on the claimant's behalf. Wrong advice is specifically given as an example of maladministration in the DWP's internal guidance on financial redress for maladministration. More detailed information about the special payments scheme can be found in "Financial Redress for Maladministration: A Guide for Special Payments Officers" (link on Rightsnet post). A complaint should initially be made to the claimant's local JCP or via their journal, with a request that consideration is given to providing financial redress for maladministration. While there are limits on the amount of payment that can be provided locally, the request can be escalated internally to the national special payments team.

Failure To Resolve Issues Promptly

We have also received reports of delays or failure to resolve issues after the claimant has informed the DWP of a problem. For example, one adviser told us that their client entered into a joint tenancy last year, but his co-tenant left immediately. He informed the DWP of this on several occasions over the telephone, as he was not comfortable using the online account. His details were not updated and he continued receiving only half of his housing costs. When an adviser made a note on his journal, advising of the change of circumstances, he was told that he would need a letter from his landlord or a new tenancy agreement. There is no legal requirement for either of these. The client had provided the information needed as soon as he became solely responsible for the rent, but his award was not updated for several months as a result of the DWP failing to act on the information that he had provided. In another case, a family was repeatedly affected by an incorrect report that they had earnings. After the first instance, the family requested a mandatory reconsideration and the award was corrected. They asked how they could avoid the problem happening again and were told that the issue had been resolved. However, the same problem occurred for the subsequent four or five assessment periods. Eventually, HMRC confirmed that the family had no earnings and the arrears were paid. However, they were offered no support from the DWP in resolving this, despite speaking no English and shielding due to coronavirus.

In cases where a claimant's information is not updated, resulting in an incorrect award, the most appropriate remedy is usually to request a mandatory reconsideration. However, where the claimant has provided all of the information needed, and the DWP continues to pay the incorrect amount, repeatedly having to request mandatory reconsideration can have an impact on the claimant's finances, due to the uncertainty of whether they are going to get the correct award and the time taken to correct the calculation. In these cases, it may be appropriate to send a pre-action letter, challenging the DWP's failure to act to update the claimant's account details, despite having all the information needed. You can find out more on using pre-action letters on our Judicial Review Project web page.

If you do see any cases where the DWP's action or inaction has disadvantaged your client, please do let us know about it.


2. Personal Independence Payment

While we have seen some delays to medical assessments for personal independence payment (PIP), these have not been as significant as those experienced by claimants awaiting a work capability assessment for employment and support allowance or UC. General feedback from advisers (at conferences, seminars and forums), suggests that PIP assessments were adapted far more effectively than work capability assessments to be able to continue during the lockdown restrictions. This appears to be due to the more effective use of the paper evidence available and use of the "Best Endeavours" guidance (provided by the DWP in response to an FOI request).
Despite this, EWS has recently received a high number of submissions about the quality of decision making following PIP medical assessments.

Some of the case studies submitted to EWS involve decisions that have no basis in law. We received a case study about a claimant, who had impaired mobility as a result of a physical impairment, who was told that he was not entitled to PIP because he was a carer for his wife, who had bipolar disorder. There is nothing in legislation that says that a person who is a carer cannot qualify for PIP. At appeal, the DWP relied heavily on the fact that he was a carer, despite the clear differences between his needs and those of his wife, which should have clearly demonstrated that his disability did not prevent him from providing the sort of care that she required.

An adviser told us about a claim for PIP, which was refused on the basis of the work that the claimant would have been carrying out, had he not been furloughed. The DWP reasoned that, had the claimant been working at the time, then it could be deduced from the activities that he was carrying out day to day that he was able to carry out certain activities that are considered in the PIP assessment. However, it is not possible to reach these conclusions in a period when the claimant has not been required to work. The adviser in this case believed that, had the claimant not been furloughed, he would have been on sick leave. The DWP should have been looking at what the claimant was able to do at the time of the claim, not what he may have been doing had he been in work at that point. In looking at the work that he was not carrying out at the time, the DWP did not base their conclusions on the actual facts, but on a hypothetical situation.

In both these cases the advisers requested mandatory reconsiderations (MRs), as the decision maker had made assumptions that were not supported by the facts of the case (that a disabled person cannot be a carer and that a person who was able to carry out certain activities when he was working remained able to carry out those activities when he was not working). In cases like this, an MR is the most appropriate remedy.

We received a submission from an adviser whose client was a domestic abuse survivor, who had a telephone assessment to determine her PIP entitlement. She had experienced violence and significant trauma, which caused her health conditions. The health professional asked only briefly about the domestic abuse and the adviser felt that, during the course of the assessment, the health professional failed to appreciate the impact that this abuse had on the claimant and its relevance to her PIP claim. The adviser also felt that insufficient consideration had been given to the activities of "reading and understanding information" and "planning and following a journey", with the health professional seeming to disregard a lot of what was said because the claimant had confirmed that she read her Bible and drove a car, and this was sufficient to demonstrate that she could carry out these activities. Again, in this situation, an MR request is the most appropriate way to challenge the decision. The health professional has failed to take account of relevant evidence i.e. the history of violence experienced by the claimant and the difficulties that the claimant had in processing information and carrying out journeys. Failing to take account of specific, relevant evidence is an official error and a revision can be requested at any time, even where the 13 month time limit has expired. This is because this is a "specific grounds" revision and the time limit only applies to "any grounds" revision, where you are requesting a revision for any reason that is not a "specific ground". Specific grounds include official error, sanction decisions, awards of qualifying benefit, decisions that have been appealed, and mistakes or ignorance about facts. You can find more information on specific grounds revisions on pp 1295 - 1300 of the Welfare Benefits and Tax Credits Handbook.

In cases where the assessment was not carried out to an appropriate standard, a complaint may also be appropriate. If you are submitting a complaint on your client's behalf, it can be useful to refer to the DWP's guidance for assessment providers.

We have also received a number of submissions on the failure to extend PIP awards that were made at tribunal. In May 2020, the DWP stated that fixed term awards that were due to end during the coronavirus pandemic would be automatically extended. This has been happening, but the reports that we have received suggest that it was not happening if the PIP claim was initially refused and this decision was then overturned by the First-tier Tribunal. Justin Tomlinson, the Minister of State for the DWP, stated in response to a written question that the extension should also be applied where the award was made at tribunal, so there should not be a difference in treatment depending on how the award was made. There is a pre-action template available on the CPAG website if your client finds themselves in this position (JR100). However, we would expect these cases to now be in decline, as the return of face to face assessments should mean that the waiting times for assessments are reduced and, in light of this, it is unclear whether any awards are still being extended.


3. Assessment Periods and Pay Cycles

We are still seeing cases involving assessment periods, where a clash with a pay cycle can have serious consequences for UC claimants.

One example of this is where the claimant is paid monthly, but their pay day falls near the first day of their assessment period, for example, if they are paid on the 25th of the month, and their assessment period runs from the 24th of one month to the 23rd of the next month. In most months, the claimant will be paid on the second day of their assessment period. However, if the usual pay date falls on a non-banking day, the claimant is likely to be paid early, and the payment will fall into the previous assessment period. In the hypothetical situation here, the claimant would be paid on the 23rd instead of the 25th. One of their assessment periods would therefore contain two payments; one received on the 25th of one month and one received on the 23rd of the following month.

As discussed in the previous e-bulletin, the Universal Credit (Earned Income) Amendment Regulations 2020 allow the DWP, in circumstances as described above, to allocate a payment to an assessment period other than the one in which it was received, in order to maintain a regular monthly pattern of payment. This should eliminate the problem, but we received a number of reports where the claimant had to request an MR to get the payment corrected, or the matter was unnecessarily submitted to the RTI dispute team and the claimant was told that it could take a month to resolve. This delay in correcting the issue can cause difficulties for the claimant, as they will be relying on receiving a certain amount of UC on a particular date and could incur debts while waiting to receive the correct amount. We also recently received a submission where a UC claimant in this position was told that nothing could be done to correct the payments, which is clearly incorrect, given the power that is provided by the new regulations. We are still interested in hearing about any failure to apply the new regulations correctly, any delays in correcting the payments, and any push-back from UC when your clients highlight this problem.

In addition to issues caused by this pay cycle, we are still seeing submissions from UC claimants who are paid weekly, fortnightly or four weekly. For these claimants, there will be certain assessment periods where they receive an extra payment from their employer, causing their UC award to reduce. This can be particularly difficult for claimants who are paid four weekly because, in one assessment period out of twelve, they will receive double their usual wages, as two four weekly cycles will fall in the same assessment period. The difficulty with these cases is that the claimant receives 13 payments over 12 assessment periods, so it is difficult to assess the fairest way for the payments to be calculated. Add to this the fact that many claimants that are paid four weekly have fluctuating incomes depending on how many hours they have worked, and it becomes very unclear what the best solution to this issue would be.

The Upper Tribunal considered the issue in relation to four weekly pay in LG V Secretary of State for Work and Pensions (UC) [2021] UKUT 121 (AAC). The appeal was dismissed, with the judge stating as follows:

"The appellant would, appear to me, benefit on eleven out of twelve months for receiving only twenty eight days pay during various months containing 28, 29, 30 or 31 days, for eleven out of the twelve months per annum, and that for the one month where she received two pays the calculation had been correctly made having regard to the legislation, the assessment period and the appellant’s earned income said assessment period."

Unfortunately, this decision will prevent a successful appeal in the First-tier Tribunal against a decision to include two four weekly payments in one assessment period, unless the circumstances of the case can be distinguished from this Upper Tribunal case.

There are other pay cycles that can cause problems. For example, EWS received a case study where the claimant's shift patterns meant that in one assessment period she will have worked 1.5 months' hours, and in the following assessment period she will have worked 0.5 months' hours. Her income fluctuated to reflect this. This is an unusual shift pattern but the resulting pay fluctuations are one of the problems that the RTI system is designed to resolve. In one month her pay will be high and her UC award will decrease correspondingly, and in the following month, her pay will be low and she will receive a higher UC award. As this is how the UC system is intended to operate, it would be very difficult to challenge the changing UC award in this situation.

Do you have something to tell us?

Hearing about your cases has a profound impact on our work. If you have a case which shows how changes in social security affect you or your clients, please let us know.

Topics we are looking out for:

  1. Relaxed rules under Covid – Has your client been impacted by the DWP's return to normal practice after the more relaxed approach over the last year? In particular, we are looking at the verification process and conditionality.
  2. PIP gatekeeping – has your client tried to claim PIP over the telephone and been told that they cannot claim because they do not have a NINo?
  3. Benefit cap – are you seeing an increase in clients reaching the end of their grace period?

Submit a case or email the Early Warning System to tell us what you're seeing and how we can help.

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