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Loopholes in the lobster pot?
I know this has been discussed before, but I want to be sure I’m up to date.
I have a client who gets Carers Allowance for her disabled child. Her new partner was claiming UC, and when they became a couple they were told by the DWP to make a joint UC claim. They did this.
Unfortunately its not working well for them. The partner has been sanctioned, and even without the sanctions they are worse off due to the lower disabled child element.
Can they close their claim and return to Income Support etc.? I have just spoken to a lovely lady on the UC helpline who says that this used to be possible, but not any more. She didn’t seem too sure of why it was impossible, other than her supervisior told her so. I have seen the recent regulations but they seem to be refering to people who have floated off UC due to earnings being tied into the UC system for six months. Does this also catch people who actively request that their claim ends?
Thanks in advance for any opinions,
Cordelia
I can’t think of anything relevant that has changed since this thread
http://www.rightsnet.org.uk/forums/viewthread/8394/
(As you say the recent amendment regs - 2015/1780 - only apply to claimants who’ve lost their UC because they’re earning too much.)
Just be very careful about timings.
If they close their UC claim shortly before the end of the monthly assessment period they could lose entitlement to a lot of UC.
Cordeila -if you give us your email address I can send you our briefing on closing UC in such circumstances
Thank you both for your advice. It’s such high stakes because if I was wrong it would cause further difficulties for the client.
If this is the briefing you referred to http://www.housingsystems.co.uk/SummarySheets/Briefing012015.aspx
I’ve read it and found it very helpful.
Another question. A colleague has a couple in a similar situation, but they haven’t yet moved in together. Would their best option be for him to withdraw his UC claim prior to moving in? (I understand that ideally he would time this for just after the end of his assessment period.) In Wrexham UC is only accepting claims from single jobseekers, so even if he needs to claim JSA to support his new family he should be ok.
Thanks again for your help,
Cordelia
Sorry Cordelia I hadn’t noticed the additional query.
It’s probably too late now but if he feels he’d be better off on legacy benefits (for a variety of reasons) then again the advice would be he could withdraw the claim but being careful of timings - might need to do some cost/benefit analysis!
The other issue is that I have just come across a Local Authority confused by HB circular A12/2014 - interpreting this as meaning no-one who has ever claimed UC can ever (ever!) claim HB- person’s UC terminated (high earnings, but well past the 6 month mark), now unfit so fails Gateway- claimed ESA but the LA said he would need to go to UC for housing costs!!!???
Wrong of course (unless someone out there knows something I don’t!) but a scenario like this could cause delays and distress while being resolved.
Unfortunately, I think the legend of the lobster-pot looms large in the minds of some LA staff.
(Perhaps that’s not surprising given all the rhetoric about the lobster-pot early on. )
There seems to be a belief in some quarters that former UC claimants (or even those who just attempted to claim UC but failed gateway) are somehow excluded from HB. You can also find LA staff attempting to second-guess the gateway and rejecting HB claims from those they think will get through ( depending on the circumstances that might be the best thing for the claimant sometimes it won’t).
I suspect there’s also possibly an issue where DWP decide a former UC claim is ‘too hard’ and want to hand-back to legacy benefits. Perhaps not unreasonably, given the rules excluding dual entitlement (outside spec accom), LAs are looking for a formal decision ending UC - I’m not clear if this is always forthcoming.
Plenty of scope for things to go wrong.
This is very worrying.
In this particular case there has certainly been no notification of termination- his payments ceased nine months ago due to earnings but no notifications at all.
The poor chap is without any income while awaiting his ESA, (relying on food banks) and his landlord isn’t going to wait indefinitely for the rent. He’s already suicidal.
The problem is one can find regulations which indicate when legacy benefits can’t be claimed - and try to explain that by inference as this circumstance isn’t one of them then HB must be claimable - but there isn’t as far as I can see any regulation or guidance which definitively states “after your UC entitlement has ended you can go back onto legacy benefits if you fail the gateway”
In the absence of this it’s just down to persuasion - or a formal challenge which could take so long to resolve the claimant will have been evicted.
Any ideas?
The problem is one can find regulations which indicate when legacy benefits can’t be claimed - and try to explain that by inference as this circumstance isn’t one of them then HB must be claimable - but there isn’t as far as I can see any regulation or guidance which definitively states “after your UC entitlement has ended you can go back onto legacy benefits if you fail the gateway”
Any ideas?
The onus is on the LA to explain why they don’t think the normal HB rules apply to your client - unfortunately you might need to dispute the decision.
If the LA thinks that they can’t get HB because of their earlier UC claim then they’ll probably be relying on either Reg 5 (Exclusion of entitlement to certain benefits) or Reg 6 (Exclusion of claims for certain existing benefits) of the UC(TP) Regs 2014.
The August 2015 version of the UC(TP) regs are here
http://www.legislation.gov.uk/uksi/2014/1230/pdfs/uksi_20141230_310815_en.pdf
Reg 5 doesn’t apply since they’re no longer entitled to UC.
Similarly the August 2015 version of reg 6 wouldn’t apply to your client (they’re not waiting for a decision on their UC claim; not a previous joint claimant; not required to claim but still waiting for a decision; not disputing the decision.)
As you know, reg 6 was further modified by SI 2015/1780 so that in limited circumstances claimants who’d lost UC due to excess earnings continue to be treated as UC claimants and so are barred from claiming legacy benefits. As you’ve already identified that can only apply for a maximum of six months - so they are certainly no longer barred from HB now.)
Given the LA’s current view that your client is in some sense a UC claimant is it worth trying for a DHP whilst it’s sorted out?
Thanks Jon-
Yes sorry I should have said - it’s these very TP regs (5 and 6) I was referring to - they say when you CAN’T claim/ be entitled to HB but don’t say when you CAN - that’s what I meant about inference- the argument is that by a process of elimination -as you’ve described- they must be able to claim HB.
I like the idea of asking for a DHP as the LA must be accepting they’re entitled to one or the other - but I don’t think it will work in this case- they HAVE accepted that UC has ended- but believe in the mythical eternal lobster pot that never opens. Like the opposite of Pandora’s box!
We have a standard letter ready to send for an appeal but hoping to bypass the need through persuasion.
Thanks Jon-
Yes sorry I should have said - it’s these very TP regs (5 and 6) I was referring to - they say when you CAN’T claim/ be entitled to HB but don’t say when you CAN - that’s what I meant about inference- the argument is that by a process of elimination -as you’ve described- they must be able to claim HB.
Sorry yes - that was more me thinking it through for myself. Could it be worth pointing them at CPAG p24 “If you are not entitled to universal credit” ?
Part of the problem is that some people who find themselves unemployed don’t follow “the script”. They present at LA HB offices before they go to JC+, or at any rate put in a claim for HB before they do anything else. With the advent of UC (our area has been “live” for a week), our staff are in the position of trying to second guess whether these people will get through the “gateway”. There are 21 gateway conditions! I think we’ll have to say - if you’re single and unemployed talk to JCP first.
Part of the problem is that some people who find themselves unemployed don’t follow “the script”. They present at LA HB offices before they go to JC+, or at any rate put in a claim for HB before they do anything else. With the advent of UC (our area has been “live” for a week), our staff are in the position of trying to second guess whether these people will get through the “gateway”. There are 21 gateway conditions! I think we’ll have to say - if you’re single and unemployed talk to JCP first.
I guess there’s no harm in pointing people towards UC - in many cases that will be right thing for the claimant.
However, if the claimant wants to go down the HB route I don’t think you have a good reason to reject their claim.
(In any case, once HB is sorted they can still claim UC instead if they want/need to.)
Just to update everyone….
My client is now back on Income Support, Housing Benefit and Child Tax Credit.
Thanks to everyone for their advice,
Cordelia
Thanks for updating us all Cordelia. Many advisers have been waiting with baited breath to find out what actually happens in practice when you bust out of the lobster pot!
It was surprisingly easy. I supported the clients to phone UC and ask to end their claim. After an initial hesitation, the adviser was very helpful, and able to discuss the implications of the end date in relation to the assessment period etc. I got the impression that she had been trained on what to do in such situations, even though the initial lime was that they don’t end claims.
We made a paper claim for Income Support. The rational for that was that by the time the form reached a decision maker the UC claim would have been removed from the system. We also completed tax credits and Housing Benefit claims.
According to my client all the claims were processed promptly and without any difficulties.