When is the exact ’point of no return’ to withdraw a UC claim?

Hi,

Client got call on Friday following WCA and told he got 0 points for ESA. Got told he needs to claim UC straight away.

Made UC claim the same day and has had his initial appointment at the JC already I believe.

Started the claim last Friday (27th). He believed his PIP and HB would stop with the ESA so scrambled to make a claim and was told by DWP he should do it that day.

I have now manged to speak to him and informed him that this is not the case so now he wants to withdraw his UC claim as he also didn’t realise he would also lose SDP.

Has he passed the point of no return and is now too late to cancel UC claim? Or is there a ‘cooling off’ period?

Also bonus question, is it worth him challenging his ESA still?  If he wins and is awarded support group would this then over write any UC rate if UC is awarded at a lower rate? Obviously it wouldn’t overwrite the award but is it still worth doing to potentially give him 2 shots at a higher rate?

He is happy to live on PIP alone during the MR period if he can

Thanks

It depends on the effect of withdrawing a UC claim.  IS, HB and Tax Credits must end if a person claims UC and DWP is satisfied that they meet the basic UC conditions (in GB, right age, not a student); JSA(ib) and ESA(ir) are abolished if the person claims UC.

R(H) 2/06 (there may be other cases making a similar point, but this is one that I know) says the effect of withdrawing a claim is that it no longer exists.  The question is: does that make it as if the claim never did exist, does it render the claim completely ineffective?  I think it does.  Or does it remain the case that the claim still exists down to the date on which it was withdrawn, which would certainly abolish ESA(ir)/JSA(ib) and (depending on timing) possibly end IS, HB and Tax Credits as well.

Local authorities receive a “stop notice” when DWP has carried out basic verification.  Has DWP at this stage confirmed that the eligibility conditions are met, including the requirement to be in GB which incorporates the habitual residence/R2R test?  I doubt it.  I suspect that the GB requirement is probably not confirmed until the decision on the claim, which leaves quite a window for withdrawal as far as preserving IS, HB and Tax Credits goes … but more of a problem for ESA and JSA.  I think we need urgent UT clarification on this: In a case where -

- UC was claimed, and
- the claimant was up to that point entitled to ESA(ir) or JSA(ib), and
- the UC claim is withdrawn before a decision has been made

are the conditions for the abolition of JSA(ib) and ESA(ir) fulfilled?

PS on the bonus question: no, if he is already on UC the best he can get from a successful ESA appeal is LCW/LCWRA within normal UC rules, so would still lose out if previously receiving SDP subject to whatever compensation/transitional arrangements emerge later in the year when the consultation on the draft regs has concluded.

Thanks Anorak,

Regarding the ESA appeal, my thoughts were if he was successful and got the support group this could be beneficial if he is awarded UC at a lower rate. Would it not be backdated or increase his rate going forward? Think I was possibly getting myself confused though. So there’s no benefit really to challenging an ESA decision once a UC claim has been made then?

Regarding UC. I got a helpful response from someone elsewhere who suggested that once a UC claim is submitted the claim is then legally made. The only exception is if someone then doesn’t meet the gateway criteria e.g. has over 2 children etc.

This gentleman meets the UCFS criteria so it appears there is no way back for him now.

I have told him to ask when he goes to the JC today but I doubt anyone at the JC will be able to advise him on this in any great detail anyway.

On balance it seems way too risky for him to withdraw his UC claim, challenge ESA and then hope he can both win his ESA and then somehow successfully argue they should let him back on ESA. All the while with no income other than PIP.

At least this SDP transitional protection thing seems to be coming in at some point soonish so he may get that back

On the ESA appeal….

There is no limited capability for work element in new claims for UC. However, if the claimant was entitled to ESA with the work-related activity component immediately before 3/4/2017 (which I assume your client was) and remained entitled to it up to and immediately before their UC claim, then it is payable. The effect of your client winning an appeal against the ESA decision and being found to have limited capability for work would be that he was entitled to the work-related activity component immediately before his UC claim - so the element would be payable in UC and from the date of his UC claim. Same applies if the outcome of the appeal was that he was placed in the limited capability for work-related activity group.

So it is worth appealing. Of course, it is likely that a decision on his capability for work will be made for the purposes of UC long before any ESA appeal is determined, in which the tribunal decision would apply only up to the date of the UC WCA decision.

As for the withdrawal of the UC claim, HB Anorak has it right - also see the CPAG article in their Welfare Rights Bulletin on defective claims and withdrawals - http://www.cpag.org.uk/content/universal-credit-defective-claims-and-withdrawals

I know that the author of that article wasn’t aware of the argument being tested in practice when I spoke to him the other month, but I will be doing so at the end of this month - I’m pretty confident it’s right.

how does someone properly withdraw their claim?
I’ve got an appeal hearing coming up with HB about this very thing - their evidence from DWP is that the claim was not progressed because customer didn’t accept their claimant commitment
I’m trying to argue she withdrew her claim by default because she was wrongly advised in the first place…. any suggestions?

DWP’s terminological imprecision may give you some wriggle-room, but if this has been done by the book I don’t think the HB will be reinstated.  Failure to accept a claimant commitment ought to result in a positive decision refusing UC - which is not a withdrawal since withdrawal of a claim must be executed by the claimant.  However DWP will use words like “close”, which obfuscates the adjudication process in much the same way as that other notorious c-word, “cancel”, for which local authorities in particular are regularly criticised by Tribunals..

If DWP has said the UC claim was “closed” withjout being more specific or without using proper decisions and appeals terminology, you might have something to work with ... perhaps the claim could still be withdrawn even now.

But as a general rule a claimant withdraws a claim by giving notice to that effect
: it is a positive action by the claimant.

Further, at least in the cases I have seen, there is nothing imprecise in the notices sent by the DWP to the authority - where the claim has been terminated by reason of withdrawal, it says exactly that.

Had a case where person claimed UC on advice of Local authority because gone onto SSP.  They decided they couldn’t do the verify and never attended the Jobcentre.  HB continued to pay for a month after UC claim date.  HB claim was suspended because they wanted up to date information about income (SSP).  This was provided but they are weeks behind assessing claim.  Due to rent arrears and pending court I asked for case to be looked at urgently this week.  HB cancelled claim and told person they need to continue with HB claim.  We disputed this and appeals officer phoned and said Local Authority received guidance a couple of weeks ago saying that once a claim for UC has been made online a person cannot go back onto legacy benefits under any circumstances.

Has anyone seen this guidance/legislation?  If so please can you send me a copy or a link to a copy

ElaineS - 19 September 2018 04:19 PM

... Local Authority received guidance a couple of weeks ago saying that once a claim for UC has been made online a person cannot go back onto legacy benefits under any circumstances.

Has anyone seen this guidance/legislation?  If so please can you send me a copy or a link to a copy

they are probably referring to guidance in HB Circular A7/2018 which includes -

‘... once a claim to universal credit has been made the gateway to legacy benefits is closed. In practice, the universal credit claim triggers the termination notice (known as an HB Stop Notice). Even if a claimant withdraws or ends their universal credit claim (regardless of whether they have received payment), they cannot choose to claim, re-claim or seek re-instatement of a legacy benefit. This continues to apply irrespective of whether the legacy benefit termination has been actioned ‘on time’.’

The guidance is entirely wrong legally - see the CPAG article referred to further up the page for the correct position.

Whilst that article does say that the position around the withdrawal of claims is not clear, I think it will depend on the facts of a particular case.

1. the UC stop notices to HB are computer generated and issued automatically - the moment that someone makes an online claim.
2. but for reg. 8 of the UC (TP) Regs 2014 to kick in (it is under this provision that legacy benefits are terminated) then the SoS has to satisfy herself that the basic conditions of entitlement are met.
3. three of the conditions are straightforward, but being ‘in Great Britain’ is not - this is the method by which it is determined whether a claimant has a right to reside.

In terms of EU nationals, I have never known the claim to proceed/benefit to be awarded without a habitual residence interview, even in the most clear-cut cases. Typically, this takes a week or two to arrange. Negative right to reside decisions take some 2-4 weeks to be issued - the SoS cannot possibly have satisfied herself as to whether the claimant is in Great Britain until that decision is issued.  I don’t usually see positive right to reside decisions - the claim simply proceeds if it is accepted the client does have a RtR.

What that means, I think, is that claimants should be on safe ground if they (or their partner) are EEA nationals who have yet to have their hab res interviews - I won on precisely that issue at FTT last week.

On another point…..

I wonder if this (mis)guidance is at least partly responsible for the LA where I work deciding that a client who had claimed and was awarded UC with 3 kids during the interim period and then rightly had the claim terminated now cannot make a new claim for HB? Clearly nonsense, but backed up by this guidance.

And on another point, I wonder if there’s any merit in an argument that reg. 8 could not have been properly used to terminate the HB claim in the first place? Reg 8 (1)(a) requires a claim for UC to be made, but reg. 39 (1) of the UC(TP) Regs 2014 says “During the interim period, no claim may be made for universal credit by a person who is responsible for more than two children…....”

past caring - 20 September 2018 10:48 AM

And on another point, I wonder if there’s any merit in an argument that reg. 8 could not have been properly used to terminate the HB claim in the first place? Reg 8 (1)(a) requires a claim for UC to be made, but reg. 39 (1) of the UC(TP) Regs 2014 says “During the interim period, no claim may be made for universal credit by a person who is responsible for more than two children…....”

This seems an excellent argument, and has the added advantage that it means there’s no break in the HB claim. I like it.