UC transitional element when a child element was included in CTC for a child in residential care, but is not included in UC

You can use this template if all the following apply:

• Your client was subject to managed migration from CTC to UC.
• They claimed UC by their ‘final deadline’ for managed migration.
• On their migration day (the day prior to the first day of the UC award, or prior to the first day UC would have been awarded), they were entitled to a child element in their CTC for a child who had been placed in residential care solely as a result of them being disabled.
• On their migration day, the claimant didn't count as responsible for the child for UC because they were 'looked after' by the local authority (and the circumstances in Regulation 4A of the Universal Credit Regulations 2013 did not apply).
• The DWP included a child element for the young person in your client’s ‘indicative UC amount’ when calculating their entitlement to the transitional element.
• As a result, the transitional element the DWP calculated they were entitled to was lower than it would have been had the child element not been included in their indicative UC amount.

This letter assumes (so can be changed)

• The claimant has not been awarded a transitional capital disregard on migration to UC from CTC.
• The person in residential care is a child (rather than a qualifying young person (QYP)).
• The child gets a disability benefit and the claimant was entitled to a higher disabled child element within their CTC.

The legal arguments in this template include:

• Under regulation 50 of the Universal Credit (Transitional Provisions) Regulations 2014 (the UC(TP) Regs), the Secretary of State for Work and Pensions (SSWP) must determine whether a transitional element is to be included in an award of UC where a claim is made under the managed migration process.
• Regulation 52 of the UC(TP) Regs specifies that a transitional element should be included in the calculation of an award if the total amount of any awards of existing benefits determined in accordance with regulation 53 (“the total legacy amount”) is greater than the amount of an award of universal credit determined in accordance with regulation 54 (“the indicative UC amount”).
• The indicative UC amount is the amount that a claimant would be entitled to under s.8 of the Welfare Reform Act 2012 if a calculation of entitlement was carried out on the migration day,  subject to a number of assumptions set out in reg 54(2) of the UC(TP) Regs, including at reg 54(2)(a): “…if the claimant is entitled to an award of child tax credit, the claimant is responsible for any child or qualifying young person in respect of whom the individual element of child tax credit is payable”.
• Under regulation 3(4.2) of the Child Tax Credit Regulations 2002 a claimant can be treated as responsible for a child or QYP who is in residential accommodation in the circumstances prescribed in regulation 9 of the Child Benefit (General) Regulations 2006, if they were responsible for the child or QYP immediately before they entered that accommodation.
• Under regulation 4(6)(a) of the Universal Credit Regulations 2013 no one can be treated as responsible for a child or QYP during a period when they are looked after by a local authority.
• As a result, the UC entitlement of a claimant with a child in residential care who is 'looked after' by the local authority is significantly lower than their tax credit entitlement, as they have lost the child element (and in some situations the higher disabled child element).
• It is argued that the application of the assumption under reg 54(2)(a) results in the claimant being adversely affected by the managed migration process in a way that discriminates against them, in breach of Article 14 of the European Convention on Human Rights, read with Article 8 and and Article 1 of the First Protocol (A1P1).
• The client’s status is that of a notified person whose child is in residential care because of a disability. The appropriate comparator is a notified person who, for reasons other than having a child in residential care because of a disability, would be worse off on UC than on legacy benefits. Such a person in almost all cases would be protected from a sudden reduction in support by the inclusion of the transitional element.
• The failure to protect parents of disabled children in residential accommodation from a loss of benefit as a result of the managed migration programme, in the same way that other claimants moving onto UC through the managed migration programme are protected, cannot be justified and is irrational and therefore unlawful.

To complete this template you need the following information.

Information about your client

• name
• address
• national insurance number

Background facts

• The name of the child in residential care
• The date the child moved into residential care
• The reason for the move into residential care
• Whether the child is ‘looked after’ by the local authority
• Whether the child gets a disability benefit, and the components paid and the rate of those components
• The legacy benefits your client was receiving immediately before their managed migration to UC
• The date your client claimed UC
• Whether there are any additional knock-on effects of not being entitled to the child element in UC, such as not being entitled to a work allowance, or a reduced housing element (because the child’s bedroom is viewed as ‘spare’)
• The date your client requested a mandatory reconsideration of the decision on their claim for UC
• The date your client submitted the appeal

Information about the decision(s)

• The date the migration notice was sent to your client
• The 'deadline day' on the migration notice
• The date of the DWP's decision to award/not award UC
• If UC was awarded, whether it included a transitional element
• If a transitional element was included in the UC award, the amount of the element at the start of the UC award
• Details of any subsequent ‘erosion’ of the transitional element
• The date of the mandatory reconsideration notice they received after requesting a mandatory reconsideration of the DWP's decision