DWP refusal to amend UC conditionality to take into account the childcare responsibilities of a claimant with a child aged 3-12 years

Use this template if all the following apply

• Your client receives universal credit (UC) as a lone parent or couple
• Your client has a child aged 3-12 years included in their UC award
• Your client is being required by their claimant commitment to undertake work or look for work for more than 30 hours per week
• Your client has asked the DWP to change their claimant commitment to to limit their expected hours to 30 hours per week and DWP have refused

This letter assumes that (so can be changed)

• Your client has, on several occasions, contacted the DWP to request changes to their conditionality
• Your client has been sanctioned

When not to use

Do not use this letter if:

• your client has not already asked for their claimant commitment to be changed

The main legal arguments in this template are:

• A 'responsible carer' as defined by s.19 (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 claimant who is responsible for a child aged 3-12 is subject to 'all work-related requirements' under s.22 of the Welfare Reform Act 2012 (WRA)). These requirements are summarised in the DWP's Advice for Decision-Makers (ADM) at J3003, and include:
  • Work-focused interview requirement (J3030 et seq)
  • Work preparation requirement (J3040 et seq)
  • Work search requirement (J3050 et seq)
  • Work availability requirement (J3110 et seq).
• The default expectation under reg. 88(1) Universal Credit Regulations 2013 (UC Regs) is 35 hours per week for claimants subject to all work-related requirements. However, for those caring for a school-aged child under 13 years, the 'expected hours' are reduced pursuant to regs. 88(2) and 97(2) UC Regs to 30 hours per week, DWP regards this as compatible with school hours and travel time.
• Applying the blanket provision of 35 hours per week to those caring for school-aged children (the majority of whom are women) would be indirectly discriminatory, contrary to the Equality Act 2010.
• By refusing to reduce the number of hours your client has to work or look for work, the Secretary of State is in breach of both ss.97(2) and 88(2)(aa) UC Regs and DWP guidance (ADM guidance, paragraph J3058) and is acting unlawfully.

Information about your client

• name
• address
• national insurance number (NINO)
• date of birth

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 or their child(ren) have
• any childcare problems your client has and if they have already notified the DWP
• details of your client's current UC conditionality
• 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

Information relating to the decision

• the date and details of your client's request(s) to amend their claimant commitment to reduce the expected hours
• the date and details of how the DWP has responded to your client's requests 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 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.