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

Priority between claimants

HMRC refusal to reallocate child benefit in a shared custody case (JR113) HMRC refusal to split child benefit between separated parents (JR162)HMRC delay in deciding a competing claim for child benefit by a domestic abuse survivor (JR130)

Right to reside

HMRC failure to apply St Prix when deciding a claim for child benefit (JR78)

Local authority refusal of council tax support to a claimant with EU settled status (JR59)

Local authority refusal of DHP when claimant is terminally ill or has a disability and their property has been adapted (JR45)

Failure by a local authority to take account of relevant factors when deciding a DHP application (JR29)

Local authority refusal of discretionary housing payment because claimant has a managed payment to landlord from their UC (JR65)

NI credits only new-style ESA claims

DWP refusal to accept a claim for new-style ESA because the claimant has insufficient national insurance contributions (JR93)

Refusal to pay / reinstate payment

DWP refusal to put right a claimant's legacy benefit entitlement when a third party fraudulently claimed UC in their name (JR112)

DWP refusal to pay new style ESA pending a work capability assessment appeal (JR44)

Delay

DWP delay deciding an irESA any time revision request (JR121)

DWP refusal to supersede award of irESA to include SDP (JR157)

WCA - home visit not offered

DWP failure to assess a claimant's capability for work for an old-style ESA claim on the papers or by home visit and ESA has been refused (JR66)

DWP failure to re-assess claimant's capability for work for ongoing old-style ESA award on the papers or by home visit and ESA is ongoing (JR67)

Award ended before WCA

Unlawful termination of old style contributory ESA after 365 days without determination of capability for work or income related ESA first (JR27)

Reasons for WCA decision

DWP failure to provide adequate reasons for a new-style ESA WCA decision (JR80)

Students

DWP refusal to accept a claim for new-style ESA because the claimant has insufficient national insurance contributions (JR93)

Flexible support fund for training and childcare costs

DWP refusal of FSF payment for upfront childcare costs because claimant has not started work (JR132)

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. 

Local authority refusal to pay housing benefit calendar monthly (JR17)

Local authority failure to exercise discretion when deciding whether to recover a housing benefit overpayment (JR42)

DWP refusal of new claim advance when survivor of domestic abuse changes from a couple to single UC award and the perpetrator has taken the final couple payment (JR124)

Local authority refusal to award housing benefit for mesne profits (JR145)

DWP delay deciding claim for pension credit (JR128)

Terminal illness

DWP refusal to decide a terminally ill claimant's PIP claim under the special rules because they're receiving ongoing treatment (JR135)

Health assessment

DWP failure to assess a claimant for PIP on the basis of their paperwork or by home visit (JR56)

DWP delay in deciding a PIP claim because claimant is unable to attend face-to-face medical assessment (JR73)

Residence conditions

DWP refusal to decide PIP claim until claimant has applied to extend their leave to remain (JR147)

DWP failure to award PIP beyond expiry of claimant's biometric residency permit (JR155B)

DWP failure to pass claimant's PIP claim to the 'competent state' without delay (JR164)

Delay in decision making

DWP delay in deciding an application for PIP (JR102)

DWP refusal to resume PIP payments following discharge from hospital or psychiatric unit (JR148)

DWP failure to assess a claimant for PIP on the basis of their paperwork or by home visit (JR56)

DWP delay in deciding a PIP claim because claimant is unable to attend face-to-face medical assessment (JR73)

Refusal to accept or process claims

DWP refusal to decide PIP claim until claimant has applied to extend their leave to remain (JR147)

DWP refusal to accept a claim for PIP because the claimant has not yet been allocated a national insurance number (JR114)

Gatekeeping

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].

Claims

DWP delay deciding claim for pension credit (JR128)

DWP pension credit 'claim closure' due to unlawful application of the HRT to a refugee (JR159)

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 - Fraud by a third party 

to support any mandatory reconsideration request or appeal. 

Disabled worker element

HMRC refusal to include disabled worker element in working tax credit award (JR74)

Payments

HMRC failure to give effect to a First-tier Tribunal decision on tax credit entitlement (JR108)

Recovery of tax credit overpayment

HMRC refusal to apply notional entitlement offsetting to a tax credit overpayment (JR139)

HMRC's failure to exercise discretion not to recover overpayment of tax credits from UC award (JR83)

DWP decision to recover tax credit overpayment as a lump sum from backdated UC LCWRA element (JR105)