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Forum Home  →  Discussion  →  Universal credit administration  →  Thread

Claiming legacy benefits if UC gateway conditions not met

geep
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My client claimed UC and answered the question about having more than £338 from employment in the next month incorrectly. As a result, the UC claim went ahead when it shouldn’t have (but was later spotted and closed). It was in a UC live area not a digital area, so my understanding was that if he had answered the UC question correctly he wouldn’t have been allowed to claim UC but would have been able to claim JSA instead. I thought the question about earning more than £338 was a gateway question rather than a part of the main UC criteria?

The DWP said to me this morning that even if he had answered the gateway question correctly and had been told that he was not able to claim UC, he would not have been able to claim JSA instead at that point because he was single and UC had already been rolled out to that area for single people. Anyone sure if that is correct or not?

Andrew Dutton
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If you don’t fit the gateway you go on to ‘legacy’ benefits. The £338 thing is a gateway question. They are wrong.

geep
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Andrew Dutton - 22 July 2016 02:00 PM

If you don’t fit the gateway you go on to ‘legacy’ benefits. The £338 thing is a gateway question. They are wrong.

Thanks, Andrew. So, basically, you only come under the UC system if you pass the gateway conditions. If you don’t pass them, it’s irrelevant if UC has been rolled out to your area, and you are able to apply for legacy benefits?

HB Anorak
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Yes, spot on: unless you pass through the gateway then for you there is no such thing as UC - the relevant parts of the 2012 Act simply do not commence.  Not only may you claim legacy benefits, you must do so

Andrew Dutton
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If someone in a gateway area gives incorrect info and is wrongly placed on UC they can either keep them on UC (if one or two payments have already been made) or they can reject the UC claim and direct the person to a JSA claim, which should have the same date of claim if the claimant makes the claim within the time limit (a month, I think)

Guidance here - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/534755/admm3.pdf

Para 3150 to 3156 or thereabouts.

There have been various amendments (listed at top of para 3150) but I think this guidance holds good for gateway areas and it’s easier to go through than the various crazy Commencement Orders

geep
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Andrew Dutton - 22 July 2016 04:19 PM

If someone in a gateway area gives incorrect info and is wrongly placed on UC they can either keep them on UC (if one or two payments have already been made) or they can reject the UC claim and direct the person to a JSA claim, which should have the same date of claim if the claimant makes the claim within the time limit (a month, I think)

Guidance here - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/534755/admm3.pdf

Para 3150 to 3156 or thereabouts.

There have been various amendments (listed at top of para 3150) but I think this guidance holds good for gateway areas and it’s easier to go through than the various crazy Commencement Orders

Thanks for that - useful to keep that guidance for future reference. Guess what, though? When they discovered the error and cancelled his UC, they told him to claim UC again not JSA - and they accepted the second UC claim (because by that point he did meet the gateway conditions). We are now asking for UC to consider backdating to the start date of the first UC claim and have put in a backdated JSA claim for the same period. Ideally, we wanted UC to give a decision on whether they would backdate before putting in the JSA claim, but they’ve taken too long and so we decided to put the JSA claim in anyway. Any idea what will happen if the JSA is awarded and UC also somehow decide that they can backdate after all?

Andrew Dutton
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Wow, they have made a mess here.

I don’t think they can backdate UC as he didn’t meet the criteria at the time.

Pursue the JSA claim, and if that fits the bill, surely it’s a case of no UC.

To refuse JSA and then make him put in a second UC claim is administratively [restrains self and rewrites next bit to soften language] a bit rubbish, and robs him of entitlement.

I suppose they could make a new award of UC and then offer compensation for maladministration to cover the JSA period - ?

It seems,from this case and others,  as if there is a determination to shoe-horn people on to UC no matter what the facts.

Make a formal complaint.

How can DWP be proposing to expand UC when they cannot even get this sort of thing right?

PS - did the claimant qualify for CJSA? That would add to the fun.

geep
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Andrew Dutton - 25 July 2016 09:08 AM

Wow, they have made a mess here.

I don’t think they can backdate UC as he didn’t meet the criteria at the time.

Pursue the JSA claim, and if that fits the bill, surely it’s a case of no UC.

To refuse JSA and then make him put in a second UC claim is administratively [restrains self and rewrites next bit to soften language] a bit rubbish, and robs him of entitlement.

I suppose they could make a new award of UC and then offer compensation for maladministration to cover the JSA period - ?

It seems,from this case and others,  as if there is a determination to shoe-horn people on to UC no matter what the facts.

Make a formal complaint.

How can DWP be proposing to expand UC when they cannot even get this sort of thing right?

PS - did the claimant qualify for CJSA? That would add to the fun.


Yes, I think he does qualify for CJSA.

Andrew Dutton
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I was going to refer to the thread on CJSA but it was your question that started it! More grist to the complaint, anyway.

CAH-Adviser
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Hi,

Wonder if you can help.  I have a Cl in similar circumstances and i am still confused? 

Cl recently turned 18 and has been under the mental health services throughout childhood.
Cl currently waiting for a referral for adult support by her GP
Cl was advised to make a claim for UC, however, failed to mention ‘mental health’ as a disability on the UC forms as she did not understand them.
Cl has now been provided with a fitness for work certificate (unfit for work 2 months)

Cl returned to the Job Centre advisor who has informed her that she cannot stop UC and has to continue claiming. 

Cl lives in UC live area not a digital area.  Should she not be able to claim ESA instead, as two of the questions for ‘gateway’ are ‘not have applied for a fitness for work certificate’ & ‘be fit for work?’

Cl is due her first UC payment on 29th October.

Andrew Dutton
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Have a look at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/558122/admm3.pdf para M3150 onwards, I think.

Try para M3170 onwards. I have however tried this on other cases and UC have just soldiered on regardless.

Where
1.  a decision is made that the claimant is entitled to UC and
2.  the DM discovers that the claimant gave incorrect information as in M3150 -
M3152 on the date the claim was made and
3. no payment of UC has been made

the decision made on the UC claim ceases to have effect immediately
.

CAH-Adviser
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That’s great Andrew, I was looking through this document but had not reached these para’s.
Thank you very much for pointing me in the right direction!

:)

bristol_1
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I have a similar client to geep’s, and I think it has uncovered a flaw in one of the UC online claim questions.
Client finished employed work in the third week of September. Makes a claim for UC on 25/09, being due to be paid wages for work done in September on 28/10 about £650.

The online claim form specifically says:

“Are you expecting take-home pay of £338 or more in the next month?
What does this mean?  This includes any payment due to be paid, from a previous or current employer. Take-home pay is your pay after all deductions have been taken off.
If you have more than one job, add together your expected take-home pay for each one.
Also include any sick pay, maternity pay, paternity pay, adoption pay or final earnings (including pay in lieu of notice and accrued holiday pay) that you expect to get in the next month.
‘In the next month’ means one calendar month from today. For example, if today was 15 August, you would include all the take-home pay you expect to receive between 15 August and 14 September.”

Client answers this correctly, as wages are due on 28/10 and is making claim on 25/09. But this question ignores that many, even most, people will serve 7 waiting days - as my client did - and his AP started on 02/10, which meant that the £650 was paid within the AP, taken into account, and he was sent a nil entitlement letter on 16/11. I’ve not seen this letter but I assume that they’ve nilled him as he falls outside of the gateway conditions. (But he answered the question correctly!)
My tactic having read this thread is to advise client to make a backdated JSA claim from 25/09 on the basis of misinformation (CPAG p125) and also put in a backdated HB claim - but this will only go back to 28/10, leaving him a month without money to put towards rent. Any thoughts on how we can fill this gap?

HB Anorak
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Well, unless his rent is less than about £25 a week the reason why he was refused UC is that he did not satisfy the gateway, in which case you would expect Article 3A(4) of the No 9 Commencement Order to apply:

http://www.legislation.gov.uk/uksi/2013/983/pdfs/uksi_20130983_310815_en.pdf

The way I read it he has one month from 16 November to claim HB and/or old-style DWP benefits and the claim will be treated as if it was made on 25 September.

But as you say, it seems Article 3A only assists if you gave incorrect information, which he did not.  Or did he?  No he did not - para 4 of the Gateway Conditions refers to a period of one month starting from the date of the claim, not from the first day of the AP.  So there is a mismatch between the Gateway Conditions and the waiting period.

I think actually the correct thing for him to do now is challenge the refusal of UC on the grounds that he did satisfy the gateway and he should have had some residual entitlement in month 1 after the taper was applied.

[ Edited: 28 Nov 2016 at 10:44 am by HB Anorak ]
bristol_1
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Ah right I see - the HB claim can be treated as made on 25/09 as well - great.

But the online claim form asks a question that is wrong, right?

bristol_1
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Also client has now made a new claim for UC on 18/11 - so what happens to the new UC claim? Will it be JSA and HB for a closed period up to 17/11?

HB Anorak
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You are too quick for me - just edited my post after looking more closely at the No 9 Order