“No right of appeal”

C is 59 and lives with a landlady who is a friend, and the DWP processed the claim and awarded him the basic rate plus £277 housing costs (single room rate LHA). They then called him for a compliance interview and said following that that he is part of a couple with the landlady and so he can’t have any UC until he either a) moves out or b) comes to the Jobcentre with her as part of a couple, notifying in either case a change of circumstances.

C is adamant that his landlady is a friend and no more, and I believe him and that there is a strong case for overturning the decision. However, therein lies the problem.

The Local Jobcentre, on advice from “the decision maker” have said that there is no right of appeal (and no right of revision either) against the living-together-as-a-married couple (LTAMC) decision because it’s a “determination” providing facts underpinning the case. A “decision” is contained within the determination, they say.

This sounds like complete nonsense, and a complete undermining of fundamental rights to dispute a wrong decision. C has no local connection to the local authority, and though he quite obviously has mental health problems there are none recorded, and he has no income, and he therefore has pretty much zero chance of finding alternative housing, and he doesn’t want to. They are not a couple, they are adamant, so will not pretend to be one to the Jobcentre (and the landlady works full-time anyway).

Is there any truth in what the DWP say, I wonder? CPAG Welfare Benefits Handbook makes no mention of any such thing, and when it discusses LTAMC decisions under UC, it just refers you to the generic revisions/appeals chapters.

A little bit of knowledge is a dangerous thing…....or, more accurately, a partially understood snippet of information is extremely hazardous.

It is correct that a finding that two individuals are cohabiting is not a ‘decision’ which carries a right of appeal in and of itself. It is, however, a determination which will form one building block of a decision - which will be to reduce the level of entitlement and, in some cases, to create an overpayment. Such decisions certainly are appealable - and, via that route, the ‘determinations’ which form part of the decision.

As per PC, in general terms you can’t appeal a “determination” (“you are living with X as a couple”) but you can appeal a “decision” which incorporates a determination (”you are not entitled to benefit because you are living with X as a couple”).

As I read your post, it sounds like the DWP have made a “determination” that they are a couple - but it hasn’t yet gone on to make any sort of “decision” which relies on that fact. Presumably benefit is still simply suspended (not something you can appeal against). If that’s the case, then what the DWP are saying is correct at least for the moment - but as PC points out, they will eventually have to make some sort of decision and you can appeal that.

Options for this client include:
(1) Going onto the journal and stating that he is not going to claim as a couple and insisting that they decide his entitlement
(2) Scouring the journal to find something that is arguably a decision which embodies this determination
(3) Judicial review (or threat of) or complaint
(4) Sitting and waiting

I think I may have found the source of the confusion about C’s so-called “no right of appeal”.

1.
UC/PIP/JSA&ESA; (Decisions & Appeals) Reg.s 2013, Regulation 50(2) and Sch.3 list the situations where there is no right of appeal. There is only one example in Sch.3 that can possibly be the relevant one here, which is Sch.3(1)(c)

https://www.legislation.gov.uk/ukdsi/2013/9780111531556/regulation/50
https://www.legislation.gov.uk/ukdsi/2013/9780111531556/schedule/3

2.
The example at Sch.3(1)(c) is related to Regulation 37 of the UC/PIP/JSA&ESA; (Claims & Payments) Reg.s 2013

Reg.37 relates to decisions about what evidence a claimant has to produce.

Reg.37(5) reads:
“(5) Where a person is a member of a couple and may make a claim as a single person by virtue of regulation 3(3) (couples) of the Universal Credit Regulations(b) and
entitlement to or the amount of any universal credit is or may be affected by the
circumstances of their partner, the Secretary of State may require the partner to do any
of the following, within one month of being required to do so or such longer period as
the Secretary of State may consider reasonable– (a) to confirm the information given about the partner’s circumstances; (b) to supply information or evidence in connection with the claim, or any question arising out of it, as the Secretary of State may require.”

(Reg. 3(3) refers to exceptional circumstances someone in a couple can claim as a single person, so is not relevant here.)

http://www.legislation.gov.uk/uksi/2013/380/pdfs/uksi_20130380_300916_en.pdf

https://www.legislation.gov.uk/ukdsi/2013/9780111531938

Can’t help noticing that these regulations refer to producing evidence where it has been established that someone is a part of a couple. Perhaps C can’t receive Universal Credit as a single person at the moment, but these regulations make no reference at all to the notion that someone can’t dispute the original decision about being part of a couple.

If anyone else ever comes across this…

Presumably if this lady is his landlady, then there is evidence of a commercially viable agreement between them (there must be as they have been paying housing costs). Is there any previous history of say a HB or JSA claim? Has he supplied sufficient information that is reasonably required to determine his claim?
Personally, I think it a question of producing information to evidence they aren’t a couple along the lines of a LTHW allegation before a decision on entitlement is made. As per the previous posts, there must be a decision on entitlement at some stage which will be challengeable even if the determination that they are a couple isn’t.
CPAG indicates (p55) that a revision or supersession is possible and also as he has a current claim in place that the onus is upon the decision maker to prove they are a couple if his claim is stopped, though in practice this burden inevitably falls on the claimant.
So fire in those statements, evidence of separate food bills, rent agreements, previous claim history, bank accounts, etc and hopefully you can get this determination changed.

After my second invitation to look again, local Jobcentre have agreed that there is a right of appeal. Technically, the appeal is against the decision to stop the benefit, rather then the living-together determination, but very worrying to think that it was the national decision maker who stopped the client’s benefit who told the local Jobcentre that the client couldn’t appeal.