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Denial of appeal rights
If anyone has any stakeholder or DWP management meetings (or if DWP snoops are reading this)
can they ask why clients are being refused appeal rights. Is it malice, incompetence , bad training or all 3??
Client of mine wants a decision looked at again under mandatory recon, so that they can appeal it
Note on journal : we wont do a mandatory reconsideration as in our opinion there is nothing to consider. We are correct and your challenge has no merit.
I am getting client to send me a copy and ill appeal anyway, as im interpreting that as a refusal to revise despite being asked, which does trigger appeal rights
How many UC claimants will just let this sort of thing go as they don’t have access to advice workers?
We are getting a few now where MRs are requested on Universal credit and DWP are simply refusing to follow due legal process.
TIA
Worrying!
Escalate through the dispute resolution team as a matter of urgency. A legitimate MR request CANNOT be refused. Claimant must be given a decision and notified of appeal rights.
I would try to get the local MP on board and raise an enquiry with the department. Usually does the trick (and, I think, sends a warning shot across DWPs bows that we are on to them and will not tolerate unlawful practice on their part).
Further, you could threaten them with the press (never tried this, so not sure how effective it is). However, DWP are very wary of (yet more)bad publicity about UC.
If none of the above succeed. Judicial Review on grounds DWP are denying right to a decision under Article 6 ECHR.
Don’t forget the CPAG resources on JR in these situations.
Seen this.
No LCWRAE paid despite it being a migration claim. Requested recon and the reply came back “we can’t recon it because we haven’t done the WCA yet”, then silence despite several messages on the journal.
People can’t really hesitate in these circumstances and should start down the JR route immediately. Three months isn’t a long time plus, I suspect once the Government Legal Service receives a few Pre Action letters they will intervene and JCP will be advised how article 6 works.
Unfortunately, this is not an isolated incident and I’ve had a few cases of this in CPAG’s Early Warning System.
This has been raised with the DWP, who have asked us to provide partial postcodes so they may ascertain whether these problems relate to certain teams/ individuals on their staff.
Our next Computer Says “No” report will be covering this issue as well, which should lend some weight to the info provided so far. The report is due to be published later this month.
I’d be very interested in receiving more case studies so we can demonstrate how prevalent this problem is, and whether it is persisting. Do complete an EWS form to tell me about your cases! https://childpovertyactiongroup.wufoo.com/forms/m1vc0zeg1sr9zgh/
Also seen a few of these. I’ve advised to go straight to appeal. Mostly done on duty so not seen much feedback but I’m aware of one where I directed the form of words to explain exactly what had gone down. HMCTS initially tried to argue they’d no jurisdiction so I invited judges direction. Couldn’t have been firmer. A clear lecture on there being no appeal rights but that the issue was black and white and this should be dealt with as an MR.
UC tried to refuse once again with a classic line about a judge not being a decision maker (!) but a quick bit of escalation including the direction and they backed down completely and conceded a change of work coach.
I have been getting this with MRs against two-payments-in-one-assessment-period cases.
In one case, DWP refused to undertake any MR whatsoever, claiming that it was a matter of policy and not law and so no MR could be done. In others they have told me that an ‘earnings dispute’ is required before MR can be undertaken.
What’s an ‘earnings dispute’?
What’s an ‘earnings dispute’?
I haven’t the least idea. A way of stopping an MR, I assume. I will try to find out.
DWP message in response to MR request:
‘I understand that you would like a mandatory decision to be raised for Mr XXXX, but first we will need to send the issue to our specialist team who deal with earnings disputes.
I have arranged for this to be done [and] If, once the response has been received, Mr XXXX is still unhappy with the result, we will be happy to send his case to a Decision Maker for a reconsideration.’
I have asked what this additional step is and where it rises in the rules.
Thanks Andrew - that is interesting - let us know what happens…
What’s an ‘earnings dispute’?
I haven’t the least idea. A way of stopping an MR, I assume. I will try to find out.
In a response from DWP solicitors (in July 18) to a JR pre-action protocol letter on the “double earnings” (as DWP describe it) following Johnson & others v SSWP:
The system by which earnings are allocated within UC is largely automated. By virtue of reg. 41 UC etc (DA) Regs 2013, the amount payable for each AP is adjusted according to earnings information reported by the employer to HMRC under the PAYE system. A decision is only made where the claimant disputes that information. Once the decision is made the claimant then has the usual right to a mandatory reconsideration and appeal.
In our case our clients AP was 30th - 29th. Salary normally paid on the last day of the month. “double earnings” occurred because the last day of the month was a Sunday so salary was paid ‘early’ on the last working day.
I conclude that an ‘earnings dispute’ is DWP speak for a ‘work around’ caused by this issue and more generally if the claimant disputes the info. received via HMRC RTI and used to calculate UC earnings (whether “double counting” or other forms of inaccuracy).
In our case the “double counting” issue ‘disappeared’ as a result of a revised decision on a different issue which resulted in an earlier date of claim for UC and re-set the AP to the original date of claim which started on 18th.
Except that re-setting created a whole new set of issue including the calculation of the arrears due and child care costs - DWP cannot explain how the arrears were calculated.
The automated nature of the UC IT appears to have ‘rejected’ child care costs originally allowed in the originally AP because under the re-set AP they were treated a ‘reported late’ and not included.
This is now set for a Directions hearing to try to resolve what decisions / legal issues now arise. We are referring to this as our UC ‘ripples on the pond’ case!
What do you get if you cross the UC, tax credits and Post Office sub-post office accounting system software? I was trying to think of a neff Xmas cracker style punchline, but ..........
What’s an ‘earnings dispute’?
The DWP believes that the part of a payment decision which is based on RTI information is not actually a decision because it’s automated. But this is open to misinterpretation. The only thing that is not a decision is the amount of RTI earnings included in the award. So this would apply, for example, if the RTI information says £500 and the claimant thinks they only got £400. If they include two months’ pay in one AP then that’s arguably not a dispute about the RTI information, but about the decision to include two lots in one AP.
So in this context, I think an “earnings dispute” will be a request under Reg 41(3) of the D&A Regs - it’s worth reproducing it here:-
(3) Where the person disputes the figure used in accordance with regulation 55 (employed earnings) of the Universal Credit Regulations to calculate employed earnings in relation to any assessment period, the Secretary of State must—
(a) inform the person that they may request that the Secretary of State gives a decision in relation to the amount of universal credit payable in relation to that assessment period; and
(b) where such a decision is requested, give it within 14 days of receiving the request or as soon as practicable afterwards.
I would note that the DWP “must inform the person that they may request… a decision… and… give it within 14 days… or as soon as practicable afterwards.” How often does that happen?
I find it slightly more worrying that I keep hearing from claim managers at a certain service centre that we can’t request an MR on any payment decision (whether it’s on the basis of LCWRA, housing costs, etc.) because no decision has been made yet.
That would be fine if the ‘earnings dispute’ ever resulted in anything other than ‘not changing our decision as we have loaded what RTI says’
I have argued at liaison meetings that this is wrong and that every monthly statement is a decision, that explicitly states that if a claimant disagrees then they can request a mandatory reconsideration. Only to be accompanied by the DWP metaphorically sticking fingers in their ears and saying la la la la and some usual gumph about it makes the process quicker.
It doesn’t every earnings dispute I have done has been accompanied by a 3 month wait for a decision, then a 3 month wait for a mandatory reconsideration followed by an appeal. I do not see why the ‘earnings dispute’ cannot run in tandem with the MR like the claimant has explicitly requested. The ‘earnings dispute’ is the DWP’s choice and should not be used as an excuse to muddy the waters and add an extra step into an appeal.
If they include two months’ pay in one AP then that’s arguably not a dispute about the RTI information, but about the decision to include two lots in one AP.
I don’t follow your logic here. Why would this not come within Reg 41(1) of the D&A Regs? DWP will have received information from HMRC that two lots of wages were paid in the AP.
If they include two months’ pay in one AP then that’s arguably not a dispute about the RTI information, but about the decision to include two lots in one AP.
I don’t follow your logic here. Why would this not come within Reg 41(1) of the D&A Regs? DWP will have received information from HMRC that two lots of wages were paid in the AP.
I was thinking the provisions in Reg 41(3) are for where the claimant believes the information provided by HMRC is incorrect.
For example, in a case where a claimant receives their pay on the last Friday of the month and has an AP which runs from 29-28, they will be paid twice during the current AP (on 29 Nov and 27 Dec). The claimant is not arguing that the figures provided by HMRC are incorrect; merely that the SSWP is wrongly including two sets of these figures in a single AP.
However, I can see that 41(1) is actually talking about a change in the amount of earnings “in consequence of information provided … by HMRC” so it’s the alteration, rather than the RTI information that is being disputed. So yes, don’t try to follow my logic there.
The response I received from DWP largely reflects what Peter and others have said above:
The ‘earnings dispute’ is a UC internal process and isn’t in the Regs (so I am told)
As UC automatically takes earnings information from HMRC, the earnings dispute process was designed so that the Department can look any earnings evidence the claimant wishes to provide in order to dispute that information.
DWP claims this is a faster process because if the earnings information the claimant provides is accepted, then the UC payment can be revised.
If the earnings information is not accepted, then a decision is given as to why it is not accepted and MR may be requested.
In the case in front of me, we are not saying that the HMRC information is incorrect; we are saying that DWP is allocating two undisputed payments to one AP in breach of their own rules and of the court judgment. To my mind this is very different from disputing details of the amount paid.
I can’t see the process being faster in this context, no matter if this is intended, as it introduces an extra layer of bureaucracy and will inevitably lead, as alang says above, to DWP confirming its own total rectitude, and a very much delayed MR.
I think an “earnings dispute” is in the regs, as per Peter’s post and my own - it’s Reg 41 of the D & A Regs.
The reason an earnings dispute is necessary is that s159D of the SSAA 1992 specifies some alterations to an ongoing award of UC which do not require a new decision. These include things like a change in the rate of UC elements, a change in C-ESA, etc. It also allows the SSWP to prescribe other changes which lead to an alteration. Reg 41 is where the SSWP prescribes that changes in income due to RTI are included.
s159D(2) says “... the amount of universal credit payable in the case of the recipient under the award shall be the increased or reduced amount, without any further decision of the Secretary of State …”
This means that a change from one AP to another in the rate of standard allowance, carer’s element, child element, etc. does not require a new decision. And neither does a change in RTI income.
As Charles has highlighted, an earnings dispute in itself is not necessarily a challenge to the information provided by HMRC - it just forces the SSWP to make a decision on the earnings information used in the calculation. It is likely to include consideration of Reg 61 UC Regs (i.e. using information other than just raw RTI).
And yes, whatever the justification for doing it like this, the consequence is a potential extra step in the appeal process. However, it might mean that the first step is quicker, because unlike MR, there is a 14 day (or ASAP) target in Reg 41.
[ Edited: 19 Dec 2019 at 02:28 pm by Timothy Seaside ]Given the above and income being based on info from HMRC this is an issue I have come across with a PC award.
Pension Service obtain these details in order to assess ongoing entitlement. Letters arrive from DWP stating revised award but no info given as to how it has been recalculated based on what info supplied by HMRC.
Pension Service are adamant that their information is totally correct as it has come from HMRC so do not see what the issue is.
Similarly to this thread what regulation could be relied on to (a) force the Pension Service to supply statements of revised calculations on a weekly/bi weekly/4 weekly basis and (b) to ask for a MR in respect of the figures supplied by HMRC which the PS is resisting?
This is further complicated in that the claimant has 7 private pensions/annuities all of which are taxed under PAYE (SchE) and the amount received for each one throughout the month varies by 5/10p from the previous month. Thus written notification is given to the Pension Service of all of these variations - on average 5 changes per month, throughout the month at least.
Sorry to side track this thread but it nudged me.
Thanks
Given the above and income being based on info from HMRC this is an issue I have come across with a PC award.
Pension Service obtain these details in order to assess ongoing entitlement. Letters arrive from DWP stating revised award but no info given as to how it has been recalculated based on what info supplied by HMRC.
Pension Service are adamant that their information is totally correct as it has come from HMRC so do not see what the issue is.Similarly to this thread what regulation could be relied on to (a) force the Pension Service to supply statements of revised calculations on a weekly/bi weekly/4 weekly basis and (b) to ask for a MR in respect of the figures supplied by HMRC which the PS is resisting?
I’m not 100% sure about this (and I’m only partially answering your question) but, looking at s159B of the SSAA 1992 (which is to PC, what s159D is to UC), the list of changes which don’t require a decision is limited to; rates of PC elements, benefits income, rates of C-JSA or C-ESA, and rates of some war pensions. There is no equivalent provision which allows the SSWP to prescribe additional things which can alter the award without a decision.
So it would appear that a change in HMRC’s RTI which changes the award will require a new decision, so it should be straight to MR if you disagree with the decision.