DWP refusal to amend UC conditionality to take account of childcare responsibilities when the claimant has a child aged 13+ years with a mental or physical impairment

Use this template if all the following apply

• Your client receives universal credit (UC)
• Your client is responsible for a child with a physical or mental impairment aged 13+
• Your client's expected hours of work search and work availability are 35 hours per week under their claimant commitment
• Your client has asked the DWP to change their claimant commitment to reduce their expected hours and DWP has refused

This letter assumes that (so can be changed)

• Your client's child does not receive DLA and your client does not receive carer's allowance
• Your client has, on several occasions, contacted the DWP to request changes to their conditionality
• Your client's UC entitlement has been refused or stopped due to failure to accept a claimant commitment

When not to use

Do not use this letter if:

• Your client has not already asked for their claimant commitment to be changed
• You client has received a mandatory reconsideration notice of the decision to refuse or end their UC entitlement and has put in an appeal. See instead Request for an appeal to be dealt with urgently

The main legal arguments in this template are:

• A 'responsible carer' as defined by s19 (6) of the Welfare Reform Act 2012 (“WRA 2012”) is a person responsible for a child, either as a single individual or as part of a couple where one member is nominated as responsible.
• A relevant carer is defined by reg 85 Universal Credit Regulations 2013 ("UC Regs") and includes “a person who has caring responsibilities for a person who has a physical or mental impairment”.
• Your client's child is/was 13+ years old - and was so at the time your client claimed UC and/or was required to sign their current claimant commitment, and has a physical or mental impairment.
• The DWP is aware of your client's child given that a child element is included in their UC award and is aware of their child's physical or mental impairment. By imposing on your client full work search and work availability conditionality and refusing to amend their claimant commitment, the Secretary of State is unlawfully in breach of regs 97(2) and 88(2) UC Regs, under which a claimant's 'expected hours' must be compatible with their caring responsibilities, and indirectly discriminating against your client (if your client is female) on the grounds of sex contrary to the Equality Act 2010.

Information about your client

• name
• address
• national insurance number (NINo)
• date of birth (DoB)

Background facts

Such as:

• when your client started receiving UC and their reasons for applying
• whether they receive UC as a lone parent or couple (include their partner’s date of birth and NINO)
• names and dates of birth of children included in their award
• any disability or additional needs your client has
• the disability or additional needs your client's child has
• any childcare problems your client has and if they have already notified the DWP
• details of your client's current UC conditionality (or conditionality before their award ended)
• whether your client has been able to comply with their current claimant commitment and any difficulties they have experienced in doing so
• consequential losses (financial and emotional distress) arising from inappropriate conditionality and sanctions (if any)

Information relating to the decision

• the date and details of your client's request(s) to amend their claimant commitment to include no work-related requirements
• the date and details of how the DWP has responded to your client's request to amend their claimant commitment
• whether your client has been sanctioned, and if so, dates and details
• whether your client has appealed any sanctions imposed as result of non-compliance with their claimant commitment, dates and details

We've created this guide is to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

Before using this letter

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."

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:

1. claimants are told they have the right to a second opinion, and
2. claimant commitments are changed following second opinions in practice

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:

1. if 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
2. whether seeking a second opinion within the ‘cooling-off period’ in practice ends the ‘cooling -off period’

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 Jobcentre 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.