Transitional Protection Query

Hi we have come across a case where a tenant who was on Carers Allowance and Income Support migrated over to UC and subsequently applied for and was awarded LCWRA. This has resulted in their transitional protection reducing by the LCWRA element amount and with the loss of the carers element they are now around £200 a month worse off. This seems incredibly unfair and we were wondering if there was anything we could advise the tenant to do?

The above is a case where the tenant applied for LCWRA themselves, however, we are also dealing with cases where people who were previously in receipt of Income Support are being sent UC50 forms by UC automatically (probably due to an underlying credits only claim) which may also result in them being worse off if awarded LCWRA as it increases their maximum UC amount.

If anyone has any suggestions as to what (if anything) can be done in these circumstances that would be great. Thanks

This is correct insofar as the regulations are written, however it is the subject of an ongoing UT appeal along similar lines to our case SSWP v JA [2024] UKUT 52 (AAC).

Your clients should seek MR/appeal any decisions to ‘erode’ their transitional protection in order to avoid (possible) issues with the anti-test case rule in the event that the UT appeal is successful.

Thanks for your help much appreciated

Further to my previous query on this issue (our tenant is worse off having been assessed as having LCWRA and losing the carer element) we are now in a situation where UC are refusing to raise a MR because they state that the tenant’s “UC award has been calculated in accordance with current policy put in place by the Government and unless the legislation changes there is nothing we can do..” and further advising our tenant to take it up with her MP.

Does anyone have any form of wording we could advise the tenant to put on the journal in order to force them to accept a MR?

Thanks!

Several options:

1. Ignore them and just lodge an appeal on the basis that refusing to deal with the MR is itself a refusal to revise.

2. Lodge a complaint.

3. Respond on the journal to the effect of “I am requesting a reconsideration of the decision regardless - please refer the matter to a decision maker accordingly”.

4. Ask Daphne to send it to stakeholders as another example of MR gatekeeping (see https://www.rightsnet.org.uk/forums/viewthread/20561/)

We have an appeal on this issue before the Upper Tribunal which is due to be heard on 30/10/2024.

I think I would argue that your client seems to have made an application for revision and SSWP has said on the journal that they will not change the decision- thus the condition that the SSWP has considered on an application whether to revise in reg. 7 of the UC(D&A) Regs is met and there is now a right of appeal.

I would then get the appeal filed.

The reason for that is that it makes sense to get the SSWP decision making on this issue concluded as soon as possible- and before our testcase on the point is decided as if it falls to the SSWP to consider whether to revise only after our testcase then the anti-testcase rule will mess things up.

FTT2 on this webpage https://cpag.org.uk/welfare-rights/tools-templates/revision-supersession-and-appeal-procedure-tools-and-templates explain the argument that you will now have a right of appeal.

Thank you both this is a great help.

Just double checking what the date of decision would be. I’m thinking it’s her payment date where the TP first eroded as a result of the LCWRA being paid? Thanks