Backdating Universal credit

Hi I am doing my first UC appeal and just wanted some advice please.

My client and his partner looked on gov . uk to see what they could claim and filled out what I think was an ESA1 for new style ESA printed it off and walked into a local job centre and the job centre took the paperwork and ‘sent it off’.
My client at the time was recently diagnosed with lymphoma and had to stop working as a self employed plasterer. His partner doesn’t work.
3 weeks went by and they were rung and told they had claimed the wrong benefit and had to claim UC, which they did and asked for it to be back dated to the date that they had mistakenly claimed new style ESA. This backdate has been refused on the basis that they cant argue official error and that the illness didn’t prevent him making the claim as they had made a claim, albeit for the wrong benefit.
(They didn’t come and see me until a few months into their claims. )

I am happy to challenge the failed MR on the basis that he was ill, they were in shock as the cancer that had been in remission for 10 years had returned and spread. It seems tough that for sick people you have to ‘reasonably been expected to make a claim earlier’ when they believed that gov.uk advised them to make a new style ESA claim. The MR obviously says that there is no room in the regulations for misinformation from a DWP official.

I wondered because of the wording of regulations ( 26(1) of UC 2013) regarding backdating am I flogging a dead horse or shall I plough on see what a tribunal says?
Thanks
Pippa

I think it’s Reg 26(2)(b) that is your problem: not only must one of the circumstances set out in para (3) apply, that circumstance must have made it unreasonable to expect the claimant to make the claim promptly.  The issue for your client is what caused them to claim ESA alone without claiming UC as well/instead?  If it wasn’t something in Reg 26(3) they won’t get the backdate.

But the ESA claim should still be processed anyway, so at least they will have that for the first three weeks (and a continuing award of ESA alongside UC, which has some advantages and is not a complete waste of time).

Thank you. That is a great help.

They were told after 3 weeks to ring new style ESA. When they rang they said to them that they cant get UC and new style ESA at the same time! It seems that the ESA is credits only.

So you don’t think that I can argue the health problems stopping him fully understanding the claims process to be able to claim the correct benefit at the right time or is that clutching at straws?

Well there’s nothing to lose I suppose but it sounds like a long shot to me.

What is it about DWP with UC and ESA?  Why cannot they ever understand this properly?  Obviously you can get ESA and UC at the same time.  If this client satisfies the contribution conditions he should get ESA(c) from day 1, supplemented by UC from week 3 onwards, and if he has been talked into formally withdrawing the ESA claim by DWP he should complain and receive compensation equal to the amount lost plus something for time and trouble.  If there is still an undecided ESA claim hanging in limbo it should be decided.

I think the problem is reg.26(4) (4) In the case of a claim for universal credit made by each of joint claimants, the prescribed time for claiming is not to be extended under paragraph (2) unless both claimants satisfy that paragraph.

Presumably this is a joint claim? Even if they did accept your client’s diagnosis satisfied the disability strand say, what would the argument be in respect of the partner?

Thanks to both of you.

It’s just frustrating. Cut the backdate from 3 mths to one month then give limited reasons for backdating.

I may move to a complaint more than an appeal possibly.

At each point they thought they were following the right course ( under challenging heath circumstances) because of what the DWP told them and yet there is no room for movement for incorrect advice from the DWP but if we get it wrong…......

You might expect the Jobcentre to actually take a few minutes to speak to him and advise him of other options wouldn’t you?

You would and they should but I think with UC and new style ESA there is still so much confusion. If that is with the staff then claimants have no chance.

Am I barking up the wrong tree here ...
UC PIP & JSA Regs 2013, Reg 26 gives the provisions for backdating a claim -
But is there any timescale within which the backdate request has to be made?

In my client’s case the UC claim was made on 13/09, and on 13/11 we requested backdating on the phone, and a letter from me setting out the grounds was uploaded to the journal. On 04/12 the request was disallowed, reason given is that the backdate request was made too late. I have not actually seen the decision letter that was added to the journal.
My client is a single claimant and I think he meets reg 26 3 (b) under disability due to mental health. I can’t see that Reg 26 means that the request for a backdate has to be made within a certain timescale.
Is the next step now to MR the decision not to backdate?

Although there is no time limit in reg 26, you are limited by the normal rules for revisions or possibly the rules for amending a claim:

Your request to backdate was a request to revise the original decision and change the date entitlement starts. Generally that request has to be made within the time limit for an “any grounds” revision. If anything, your next step would be to now appeal the original decision, as you have already requested it be revised and been refused.

However, it may be that any claim made without specifically requesting a backdate can be assumed to be a claim for the period starting with the date of claim (as that is normally the case). If this is true, a request to backdate would have to be made before the claim is decided (due to the rule that claims can be amended up until they have been decided).

bristol_1 - 03 May 2019 02:39 PM

Am I barking up the wrong tree here ...
UC PIP & JSA Regs 2013, Reg 26 gives the provisions for backdating a claim -
But is there any timescale within which the backdate request has to be made?

In my client’s case the UC claim was made on 13/09, and on 13/11 we requested backdating on the phone, and a letter from me setting out the grounds was uploaded to the journal. On 04/12 the request was disallowed, reason given is that the backdate request was made too late. I have not actually seen the decision letter that was added to the journal.
My client is a single claimant and I think he meets reg 26 3 (b) under disability due to mental health. I can’t see that Reg 26 means that the request for a backdate has to be made within a certain timescale.
Is the next step now to MR the decision not to backdate?

Although we often talk about backdating the process is actually to extend the time limit for claiming.  So if your client wanted to make a claim from, say, 20/08/18, that claim should have been made on 20/08/18 but the time limit could be extended for up to a month, ie up to 20/09/18. 
If the claim your client made on 13/09/18 did not specifically request backdating then it is a claim from that date.  If he/she wanted to claim for the period from 20/08/18 the ‘backdating’ request would have to have been made by 20/09/18. 
Or to put it another way a claim made on 13/11/18 cannot cover any period before 13/10/18 because that would involve extending the time for claiming by more than a month.  .