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Can the 2012 Act un-commence and recommence? #lobsterpot
Always risky to float a legal argument about UC roll-out - there is so much legislation that to is easy to misinterpret - but what do people reckon to this?
As I understand it, it has become widely accepted (including by DWP) that it is possible in a gateway area to revert to legacy benefits in certain circumstances, for example:
- natural changes, the classic sequence being a jobseeker on UC who finds work which takes him/her out of benefit altogether for longer than six months, then goes sick and fails the UC gateway second time around.
- forced changes, such as a jobseeker becoming sick while already on UC, realising s/he would be better off on legacy benefits and relinquishing his/her UC award (with due care as to the timing). S/he then fails the gateway second time around
But there are also stories of DWP insisting that having once passed through the gateway you can never go back (see for example this thread http://www.rightsnet.org.uk/forums/viewthread/9752/). I have been thinking about this and looking at the No 9 commencement order and I think that DWP may be right that you can only pass through the gateway once.
Articles 3 and 4 of the No 9 Order basically do two things:
- they commence the provisions in the 2012 Act relating to UC itself, and
- they commence the provisions in the 2012 Act that abolish JSA(ib) and ESA(ir).
In order for these provisions to commence the claimant must satisfy the gateway conditions at the time when s/he makes a claim for any of UC, ESA or JSA (obviously I am simplifying a bit). Thereafter it seems to me that for that person UC now exists forever and JSA(ib) & ESA(ir) do not - ever again. Whatever path life takes you along in the future you can no longer claim JSA(ib) and ESA(ir) because there is no such thing; and you can claim UC any time you like because it exists and there is nothing to say that you have to meet the gateway conditions in the future.
IS, HB and tax credits are a different matter - their abolition has yet to commence anywhere and instead the ability to claim or not claim these benefits is regulated by the Transitional Provisions Regs. So it is conceivable that you could go from out-of-work UC via a six month hiatus to in-work HB and CTC, for example. But JSA(ib) and ESA(ir)? Never again as far as I can tell.
Now someone can point out the very obvious bit of legislation that I have plumb missed ...
I remember having a discussion about this with someone - can’t remember who (Gareth?) - and I think I came to the conclusion that the provisions commence in relation to a claim rather than to a person - Article 2 of the No 9 Order talks about coming into force ‘in relation to the case of a claim’. So my view has been that for that claim UC exists and JSA(ib) and ESA(ir) do not - but once the claim comes to an end that is it. If that person then makes a subsequent claim it starts afresh and provisions are only commenced if the person satisfies the gateway conditions on that new claim. But that is obviously just my interpretation which could easily be wrong!
Thanks - that’s quite persuasive. The provisions are commenced in relation to the claim and any award arising from it, so there is an implied “sunset” mechanism if the claim results in no award and/or the award comes to an end.
“..in relation to the case of a claim..” means - a claim for UC doesn’t it?
[ Edited: 8 Jun 2016 at 11:57 am by Jon Blackwell ]
Yes I meant the provisions are commenced in relation to that UC claim - but a new UC claim would be a separate thing - sorry if that wasn’t clear
OK - just having a brain-fade: take someone in the live service area who meets gateway but who hasn’t yet claimed UC and wants to claim legacy benefit(s) instead. Something’s stopping them - but which provision is it?
WRA 2012 s36 and Sched 6 para 2(1)(c) and para(3)(1)(e) included powers to make regulations to treat a claim for existing benefits as a claim for UC - have any regs actually been made using these powers? (I’m not even certain they’re commenced).
Articles 3 and 4 seem to be quite specific about the claims that cause things to commence:
- Only a claim for UC can commence the existence of UC under Article 3
in relation to the case of a claim referred to in paragraph (3)(a) to (d) and any award that is made in respect of such a claim ...
- But a claim for any of UC, JSA or ESA commences the abolition of JSA(ib) and ESA(ir) under Article 4, so if you are a vanilla gateway single jobseeker that leaves you with just UC as a means-tested DWP benefit
in relation to the case of a claim referred to in paragraph (2)(a) to (d) and (g) and any award that is made in respect of such a claim ...
That’s why I like Daphne’s interpretation: those commencements only apply for the duration of the claims and awards listed in Articles 3(3) and 4(2)
OK - just having a brain-fade: take someone in the live service area who meets gateway but who hasn’t yet claimed UC and wants to claim legacy benefit(s) instead. Something’s stopping them - but which provision is it?
WRA 2012 s36 and Sched 6 para 2(1)(c) and para(3)(1)(e) included powers to make regulations to treat a claim for existing benefits as a claim for UC - have any regs actually been made using these powers? (I’m not even certain they’re commenced).
I think it’s Article 4 of the No 9 Order: as soon as you claim JSA or ESA you cause the means-tested variant of those benefits to be abolished.
It’s like something out of classical mythology isn’t it - condemned by the gods to spend eternity reaching out for JSA, which keeps disappearing every time you touch it.
[ Edited: 8 Jun 2016 at 12:25 pm by HB Anorak ]OK - just having a brain-fade: take someone in the live service area who meets gateway but who hasn’t yet claimed UC and wants to claim legacy benefit(s) instead. Something’s stopping them - but which provision is it?
WRA 2012 s36 and Sched 6 para 2(1)(c) and para(3)(1)(e) included powers to make regulations to treat a claim for existing benefits as a claim for UC - have any regs actually been made using these powers? (I’m not even certain they’re commenced).
I think it’s Article 4 of the No 9 Order: as soon as you claim JSA or ESA you cause the means-tested variant of those benefits to be abolished.
It’s like something out of classical mythology isn’t it - condemned by the gods to spend eternity reaching out for JSA, which keeps disappearing every time you touch it.
Yes - that looks like it - thanks - and that leaves the route open to TC and/or HB as we’ve previously discussed?
Yep, and it leaves the route open to IS as well
[ Edited: 8 Jun 2016 at 12:39 pm by HB Anorak ]