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Backdated PIP when moving from ESA to UC
My client and his partner have received backdated awards of PIP and ESA due to official error. They are currently on ESA and the awards are disregarded for the lifetime of the ESA claim. As they would be better off on UC, can anyone tell me where they will stand with regards to the capital. Will it still be disregarded under UC?
Paragraph 18 of schedule 10 of the Universal Credit Regulations 2013 disregarded capital 18.—(1) A payment received within the past 12 months by way of arrears of, or compensation for late payment of—
(a)universal credit;
(b)a benefit abolished by section 33 of the Act; or
(c)a social security benefit which is not included as unearned income under regulation 66(1)(a) or (b).
(2) “Social security benefit” means a benefit under any enactment relating to social security in any part of the United Kingdom [F2and includes armed forces independence payment under the Armed Forces
If you are asking about the extended disregard beyond 12 months, this is covered by Reg 10A of the UC (Transitional Provisions) Regs 2014, specifically para (1)(a)(i) & (b) and para (2) in the circumstances you describe.
If you are asking about the extended disregard beyond 12 months, this is covered by Reg 10A of the UC (Transitional Provisions) Regs 2014, specifically para (1)(a)(i) & (b) and para (2) in the circumstances you describe.
Just what I was looking for, thank you.
Following on from this:
Looking at https://www.legislation.gov.uk/uksi/2014/1230/regulation/10A para 1 (d):
.... and (the period of entitlement to benefit to which the payment relates commences before the first date on which, by virtue of section 33 of the Act (abolition of benefits), no claimant is entitled to an existing benefit.section 33 of the Act (abolition of benefits)
I can’t decipher what this means. Does it mean the period of entitlement to which the official error relates has be before the whole Welfare Reform Act 2012 before it can be disregarded for 12 months or indefinitely?
It means that in order to enjoy a disregard for longer than 12 months, the period of underpayment due to official error etc, has to have begun before migration to UC is complete for all claimants.
It means that in order to enjoy a disregard for longer than 12 months, the period of underpayment due to official error etc, has to have begun before migration to UC is complete for all claimants.
This is a condition which won’t ever be satisfied for as long as we still have people living in temporary and supported housing and pensioners receiving Housing Benefit, despite s.33, right?
Thanks, guys. That would have been my second guess but, as always, I go for the worst-case scenario.
In 2020, my colleague’s client got SDP backdated to 2004 and a letter stating that the capital would be disregarded indefinitely for IRESA, as the backdated monies were due to an official error.
Following a telephone interview, DWP has decided it’s not disregarded indefinitely. My colleague thinks that this is due to a different interpretation of the rules on capital disregards.
As the backdate pre-dates the introduction of ESA and the LEAP exercise, my suspicion is that DWP actually believe that the backdated SDP was not an official error (as opposed to deciding on a different interpretation of the regulations).
My colleague is awaiting a formal decision.
Blimey, I’m going to disagree with Charles AND Elliot, this is risky!
I read Reg 10A as meaning that the arrears of benefit must go back to a date before s33 commenced in this particular claimant’s case. It is oddly worded, because as yet HB and Income Support have not been abolished for anyone at all, not even those who are already on UC and in general needs accommodation. Section 33 has only commenced for some ESA(ir), JSA(ib) and (not as many) Tax Credit cases. Regs 5 to 8 are still doing the job of phasing out IS, HB and most Tax Credit cases (terminations and blocking new claims, without actually abolishing the benefits).
But I think the aim of Reg 10A is to continue the disregard into UC in a case where it applied, or would have applied, before the commencement of any part of s33 for that claimant.
I don’t think it covers someone who claimed UC in, say, 2019, and who now receives arrears of PIP back to 2021, because the local commencement order abolished JSA(ib) and ESA(ir) for that claimant in 2019 when s/he claimed UC and so s33 is in force for that person at the beginning of the PIP arrears period.
I don’t read it as allowing everyone to benefit from the disregard until s33 has commenced in full for everybody everywhere.
Hmm… We still have to deal with it talking about “no claimant” being entitled to an existing benefit though, rather than “the claimant” I suppose.
And we have this, from the explanatory memorandum to SI 2018/932, although of course not binding:
7.6 This provision applies to arrears due to official error and error on a point of law. It will only apply to arrears relating to benefit entitlement which began before migration of the legacy benefits to UC is complete.
OK, that’s interesting.
Would have been more straightforward to put that in Schedule 10 to the main Regs, and then amend it (with protection for existing cases) in 2029, or 2026 or whenever the target is now.
So if we all keep quiet, there could be a sleeping loophole there in the continued existence of HB for unconventional accommodation ... and pensioners for that matter (until SPCHC is rolled out, if that ever happens)