Judicial review pre-action template letters: other benefits and payments

Gatekeeping (refusal to accept claims)

The following template has been withdrawn due to the coming into force of the Bereavement Benefits (Remedial) Order 2023:

JR103: Refusal to accept a bereavement support payment claim because the claimant was co-habiting rather than married to the deceased at the time of their death. 

We have the following templates:

Priority between claimants

• JR113: Failure to exercise discretion to remove child benefit from one parent and award to another where: shared custody, court order, history of domestic violence, and CB already in payment given as reason not to do so. The High Court in Northern Ireland found that in similar circumstances HMRC had failed to take account of its guidance when deciding not to reallocate the child benefit, and ordered HMRC to re-make the decision. 
• JR162: Refusal to split Child Benefit payments between parents with shared care when exactly 50/50 custody and they have more than one child.  
• JR130: Delay in deciding child benefit claim in domestic abuse cases where an abusive ex-partner has an existing child benefit award.

Right to reside

• JR78: Failure to apply St Prix period correctly re Child Benefit (ie, treated as a worker for reasonable period following child birth).

For a copy of any of the above templates contact [email protected].

Backdating following granting of refugee status

We have withdrawn the following template as HMRC guidance is now correct following the use of the template by Manchester Citizens Advice Bureau. Please seek a mandatory reconsideration instead, an MR template is available)

• JR98: Refusal to backdate child benefit to date first claimed asylum rather than date successfully claimed asylum, when refugee status granted on same facts as when first applied for asylum 

We have the following template:

• JR59: refusal of CTR when has EU settled status

For a copy of this template contact [email protected].

We have the following templates:

• JR45: Refusal of a discretionary housing payment (DHP) - disability, adaptation and terminal illness
• JR29: Refusal of DHP - under 35 local housing allowance rate, waiting for PIP appeal
• JR65: Refusal of DHP - benefit capped client but Managed Payment to Landlord in place so rent being paid in full. DHP refused as 'no need for help with housing costs'

For a copy of any of these templates contact [email protected].

If a DHP is refused because it has been requested on a long term rather (than short term basis) please get in touch, and see Halvai (R on the application of) v London Borough of Hammersmith and Fulham [2017] EWHC 802 (Admin) (9 March 2017).

If a DHP is refused because PIP/DLA has been taken into account as income, please get in touch (and include a copy of your local authority's DHP policy).

We have the following templates (for a copy of any of these templates contact [email protected]):

NI credits only new-style ESA claims

• JR93: Refusal to accept a claim for new-style ESA as claimant has insufficient national insurance (NI) contributions (gatekeeping) & not treating as claim for limited capability for work (LCW) NI credits. This letter assumes the claimant is a student, receives PIP, and has an appointee. If other eligibility for ESA is disputed please contact [email protected].

Note: from 15 December 2021 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 was to close off the so-called 'workaround' of someone already receiving education applying for ESA (and getting LCW) before applying for UC.

Refusal to pay / reinstate payment

• JR112: Refusal to reinstate income-related ESA when UC claimed fraudulently
• JR44: Refusal to pay contributory ESA pending an appeal of a work capability assessment (WCA) decision.

Delay

• JR121: Delay/failure to carry out an any-time or specified grounds income-related ESA revision
  Note that this letter can be adapted for other benefits but, for UC for example, it will need the relevant DWP ADM guidance rather than DMG.
• JR157: Refusal to supersede income-related ESA award to include severe disability premium (SDP) following PIP award as "should claim UC instead".

WCA - home visit not offered

• JR66: ESA (old style) WCA (reassessment) not done on papers and home visit not offered
  Letter assumes ESA has been terminated as a result of failure to attend (so includes good cause).
• JR67: ESA (old-style) WCA (reassessment) not done on papers and home visit not offered
  Letter assumes ESA has not been terminated as a result of failure to attend.

Award ended before WCA

• JR27: Failure to send an ESA50 and termination of contributory ESA after 365 days without WCA and/or assessment of entitlement to income-related ESA.

Reasons for WCA decision

• JR80: Generic or no reasons for New Style ESA Work Capability Assessment decision- frustrating appeal rights

Students

• JR93: Refusal to accept claim for new-style ESA as claimant has insufficient NI contributions (gatekeeping) & not treating as claim for LCW NI credits
  This letter assumes the claimant is a student, receives PIP, and has an appointee. If other eligibility for ESA is disputed please contact [email protected].

For a copy of any of the above templates, contact [email protected].

We have the following template (for a copy of this templates contact [email protected]):

Flexible support fund for training and childcare costs

• JR132: Flexible support fund (FSF) for training refused as claimant has not yet started work when training will enable claimant to take up a firm offer of employment

Note: permission to appeal to the Supreme Court was refused in R (Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482. The UC childcare costs element is therefore not available for 'upfront' childcare costs. Consider the FSF where available.

Flexible support fund for travel costs 

Where face-to-face Jobcentre appointments are required more frequently than once every 2 weeks, DWP guidance states FSF must be paid to the value of the public transport used (using a Jobcentre Plus Travel Discount Card or other concessionary public transport pass if possible), or 25p per mile by car. Your client should therefore request FSF payments via their UC journal and we suggest drawing specific attention to the DWP’s guidance (below). If their request is refused, please then contact [email protected].

DWP operational guidance ‘Flexible Support Fund’ (V14)

Mandatory awards for travel

An award for travel expenses must be made when a claimant:

attends additional appointments other than the fortnightly Work Search Reviews when they are allocated to the Intensive Work Search regime, this includes:

alternate weekly Work Search Review during the first 13 weeks of being allocated into the Intensive Work Search regime

[...]

Note: where public transport or is not used (for example due to disability or because none is available), the amount of Flexible Support Fund payment is 25p per mile for 'private transport'

How much to award

If it is not possible for claimants to use local or other concessionary public transport passes, the award must be based on the cost of public transport by the most reasonable and economical route. If using private transport, the award is 25 pence per mile by the most direct route.    

Paying travel expenses

DWP guidance sets out the processes to follow when making a payment of FSF for the award of travel expenses.

DWP guidance: ‘09 Payment of travel expenses’ reiterates the amount of the payment:

How much to award

7. Wherever possible Jobcentre Plus Travel Discount Card and other concessionary public transport passes available to claimants, such as Railcard (link is external) and concessionary bus travel (link is external) should be used to minimize costs.

8. If such a facility is not available, the award, whether obligatory or discretionary, must be based on the cost of public transport by the most reasonable / economical route or 25 pence per mile by the most direct route if using private transport. 

For a copy of the above template contact [email protected].

We have the following templates:

• JR17: Refusal to pay housing benefit (HB) calendar monthly
• JR42: Failure to exercise discretion not to recover an HB overpayment
• JR124: Refusal to accept an HB claim for temporary accommodation because the tenant has been placed in the temporary accommodation by a different local authority. Thanks to Hackney Community Law Centre for drafting and sharing this template. 
• JR145: Refusal to make an any time revision decision (out of time to appeal) re incorrect termination of HB when should have superseded award to continue HB in respect of mesne profits at end of notice to quit period in a temporary accommodation. Thanks to South West London Law Centre for drafting and sharing this template.

For a copy of any of the above templates contact [email protected].

We have the following template:

• JR128: Delay deciding pension credit claim.

For a copy of this template contact [email protected].

We have the following templates (a copy of any of these templates, contact [email protected])

MH v SSWP LEAP exercise

• JR131: Refusal to include a personal independence payment (PIP) period before a First-tier Tribunal appealed decision but post the MH judgment in the MH LEAP Exercise
  Based on a pre action letter shared by Greater Manchester Law Centre.

Terminal illness

• JR135: Refusal to accept claimant's SR1 in respect of a PIP claim under the Special Rules as they are still receiving treatment. Thanks to Swindon Citizens Advice Bureau (funded by Macmillan) for their assistance in preparing this template.

Health assessment

• JR56: Refusal to assess PIP on papers rather than face-to-face.
• JR73: PIP as above JR56, but new PIP claim therefore not determined/delay as assessment not done on papers etc

Residence conditions

• JR147: refusal to send PIP2 Form and to decide PIP claim until claimant who is within duration of existing LTR has applied to extend their LTR
• JR155B: PIP awarded to expiry date of biometric residence permit (BRP) as taken as expiry date of leave to remain (LTR), and expiry date of LTR is irrelevant
  This template challenges DWP's decision to award PIP only to the expiry date date of a claimant's BRP where the BRP expiry is not the expiry date of their LTR, and also expiry of LTR is irrelevant to the term of a PIP award, which should be set in line with a claimant's needs.

Delay in decision making

• JR102: Delay in providing PIP decision, impacting means tested benefit eligibility
  This template has been adapted with the kind permission of Student Services, King’s College London.
• JR148: Failure to resume PIP payment on discharge from hospital / psychiatric unit as DWP think accommodation is a hospital setting when it is not
  This template has been prepared and shared by Manchester MIND after being used successfully.
• JR56: Refusal to assess PIP on papers rather than face-to-face.
• JR73: PIP as above JR56, but new PIP claim therefore not determined/delay as assessment not done on papers etc.

Refusal to accept or process claims

• JR147: refusal to send PIP2 Form and to decide PIP claim until claimant who is within duration of existing leave to remain (LTR) has applied to extend their LTR;
• JR109 refusal to accept claim from person who does not yet have a national insurance number (NINo) and has not already applied for a NINo;
• JR114: refusal to accept a claim from someone who has already applied for a NINo but has not yet received their NINo.

If your client has experienced ‘gatekeeping’ via the telephone, request a form via post as soon as possible and get in touch with us ([email protected]). The DWP website states:

Claim by post

You can get a form to send information by post (although this can delay the decision on your claim). Write a letter to ask for the form.
Personal Independence Payment New Claims
Post Handling Site B
Wolverhampton
WV99 1AH

DWP say in response to CPAG correspondence on this issue:

"PIP policy colleagues have made enquiries with the DWP Work and Health Services Group who have looked at the concerns you identified with compliance with the guidance where individuals do not have a NiNO.  I understand that changes have been made to ensure compliance, including identifying any cases in addition to those mentioned in your email of 24 March 2021.  

I also understand that the inconsistency on gov.uk will be addressed* and our clients have offered to review the cases you mention where guidance appears not to have been followed or other cases which may help identify any additional training for call handlers.

If you would like to take up this offer, calls that have no NiNO are difficult to find because they are not linked to a specific reference, so it would be helpful if you can provide the following details:

•       Date and time the call was made
•       The number the call was made from
•       Was the call made to the New claim or Enquiry line"
 

CPAG are keen to ensure compliance with DWP guidance and to resolve individual cases for clients. Please let us know (by emailing [email protected]) if you are contacted by anyone who has, when they have tried to claim PIP, been told they must have a NINo before they can claim. If possible, please include the details requested above. If these details are not held, we are still happy to raise cases with DWP using other identifying details (name, date of birth etc).
* NB the website had not been amended as at 18/01/24: www.gov.uk/pip/how-to-claim

What should happen procedurally when a claimant who does not have a NiNo tries to claim PIP?

• Claimant with no NINo calls to make PIP claim 
• Paper PIP1 form sent to claimant 
• Paper PIP1 returned to DWP. DWP create a 'Prospect Person record'
• PIP2 'How your disability affects you' sent to claimant
• PIP2 returned to DWP
• NINo application triggered
• NINo allocated. DWP update from 'Prospect Person' to 'Person' record

The DWP learning guide “PIP17 Paper Claims” (made available in response to a Freedom of Information request), makes clear procedurally what should happen where a claimant makes a claim without a NINo: 

"A paper version of the initial claim form (PIP1) will be issued where the claimant or their PAB:
…
does not have a National Insurance Number (NINO)"

The date of claim is then the date that the claimant telephoned to make the claim providing the claim form is retuned within one calendar month:

"Claimants have one calendar month from date of issue to complete and return the paper claim form to the issuing office. If returned in time, the date of claim will be the date that the claimant telephoned the Department to request the form or the date a letter requesting the form was received."

DWP staff guide “PIP New Claim telephony data gather” (also provided in response to the FOI) confirms that a NINo is not required to issue a paper form. 

"There is a requirement for minimum data to issue a paper claim form: 

• Name, address and either date of birth or NINO of claimant"

The ‘PIP17 Paper Claims’ and ‘PIP New Claim telephony data gather’ guides for DWP staff are clear that where a claimant does not have a NINo, procedurally a paper claim form should be sent out to the claimant on provision of the claimant’s name, address and date of birth. Provided this is returned within one month, the claim will start from the date of the telephone call. 

The DWP guidance “Missing NINO” (also provided in response to the FOI request) states that following completion of paper PIP1 and PIP2 forms, where no NINo is held by the claimant, DWP will trigger a NINo application on the claimant’s behalf by completion of the DCI1 form:

"If a PIP award is appropriate, the CM creates a manual task on PIPCS for the NINO allocation specialist team to take the appropriate action to establish the claimant’s NINO. On receipt of such a task, the Specialist user will complete specialist trace action and if appropriate make further enquiries with the claimant to identify the NINO. If the NINO has still not been established following these enquiries, the Specialist user will complete form DCI1 and refer it to the NINO Centre (NC)… In all cases where a NINO is allocated, the Specialist user will change the Prospect Person record to a Person record in PIPCS and update the Communication Record and create a task to the CM to input the decision."

For a copy of any of the above templates contact [email protected].

We have the following templates:

Claims

• JR128: Delay deciding pension credit (PC) claim
• JR158: PC claim 'closed' because failed habitual residence test (HRT) when exempt from HRT as claimant is a refugee / other exempt status
  Adapted from a pre-action letter drafted and shared by by CPAG Scotland.

For a copy of either of these templates contact [email protected].

We have withdrawn the following template following correspondence with the DWP (see below)

• JR140: Refusal of Sure Start Maternity Grant to resettled Afghan refugee because baby is not claimant's first child (last updated Dec 2022) 

On 06/02/23 DWP correspondence to CPAG stated:

• Ministers have given approval to change Sure Start Maternity Grant (SSMG) guidance, to apply an exemption to people with a pre-flight child / children, fleeing Afghanistan and Ukraine as a consequence of the Taliban takeover and the Russian invasion.
• An exercise to review qualifying cases / claims previously disallowed under the SSMG ‘first child only’ policy will commence with immediate effect, and as long as all the other eligibility criteria is satisfied, payments will be issued over the coming weeks.
• A communication has been issued to DWP staff informing them of the exemption for any new SSMG applications received.
• The Social Fund Maternity and Funeral Expenses (General) Regulations 2005, GOV.UK website and SF100 claim form will be amended in due course.

If anyone has any difficulty getting previously refusals changed, or sees newly issued refusals wrongly issued then please do let CPAG know via the Early Warning System or to [email protected].

Additionally, if you have a client who is refused a SSMG due to having previous children but does not have baby items due to fleeing domestic abuse, please get in touch, [email protected].

We have the following templates:

Claim closure as a result of a stop notice from DWP when UC claimed fraudulently

Note: there is a right of appeal against the decision to terminate tax credits on receipt of a s.18 final award notice 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 and the legacy benefit was their only income).

Some success has been reported by advisers appealing termination of legacy benefits at the First-tier Tribunal where claimants have made defective claims for UC. Please feel free to use the arguments in the template at:

Judicial review pre-action template letters: universal credit and migration to universal credit - Templates on universal credit - Fraud by a third party 

to support any mandatory reconsideration request or appeal. 

Disabled worker element

• JR74: Working tax credit (WTC) disabled worker element stopped due to PIP ending/not awarded, but ongoing entitlement due to previous ESA award. Note: you must also seek a mandatory reconsideration and only use Judicial Review as a last resort (eg, if your client is experiencing significant hardship as a result of the decision, or has received poor service such that you want to ask for staff training).

Payments

• JR108: Failure to implement First-tier Tribunal (FTT) decision that entitled to tax credits, or refusal to pay tax credits following FTT decision that entitled and time limit for HMRC to appeal has expired. Note: FTT decision must be an outcome decision (ie, specify the amount and period) - if unclear, seek advice.

Refusal to accept a late mandatory reconsideration request

We have withdrawn the following template as in CTC/886/2021 the Upper Tribunal confirmed there is a right of appeal against a decision where an MR has been requested and HMRC have refused to carry out an MR because it is 'out of time' but was made within 13 months. The appropriate action is now to appeal.

• JR11: HMRC refusal to accept mandatory reconsideration (MR) request made after 30 days but within 13 months. 

Recovery of tax credit overpayment

• JR139: Refusal to apply notional entitlement to an overpayment as has been applied before to an earlier overpayment. Thanks to Hackney Community Law Centre for drafting and sharing this template. 
• JR83: Challenging the decision to recover a tax credit overpayment.
• JR105: Lump-sum overpayment recovery of tax credits from underpayment of UC limited capability for work-related activity element.

For a copy of any of these templates contact [email protected].

Refugee retrospective child tax credit claim 

We have withdrawn the following template following successful litigation:

• JR57 Refusal to accept retrospective tax credit claim following grant of refugee status. 

Note: please visit our test cases page Retrospective child tax credits for newly recognised refugees for how to protect your client's position.