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UC ‘backdating’ - calc. of arrears when UC Reg 21A not applied.
I’m hoping someone might have a suggestion on this - which probably means I will owe Gareth another pint!
This issue is arising following successful appeals on refusal of original UC claims.
Scenario - client claims UC - claim refused (no R2R or similar) - appeals - appeal allowed. In the meantime client claims UC again - claim allowed. Therefore arrears of UC are due from the date of claim on claim 1 to the start of 1st AP on claim 2. Periods of about 6-10 weeks involved.
UC Reg. 21A provides a way of calculating arrears in this situation that avoids changing the assessment period. However in our cases DWP have not applied Reg. 21A but have ‘re-set’ the 1st day of the assessment period to start form the date of claim of the now allowed 1st claim. For example from 16th - 15th to 30th - 29th.
The UC entitlement for each AP throughout the entire history of the award from date of claim of claim 1 up to the present is re-calculated for every AP based on the new AP start date and new payment statements posted to the UC account (and the originals disappear - but we had printed them off).
DWP have then paid arrears. However DWP seem completely unable to explain the calculation of the arrears. They clearly haven’t calculated the arrears using Reg 21A but also (wrongly) ‘re-set’ the AP (if only it were that simple!).
These cases are now heading to tribunal on the basis that in the absence of an explanation for the calculation of the arrears it must be wrong!
I would like to be able to show what the actual arrears should be (and the DWP calculations may well be correct!).
In some cases (due to the time it takes to get to a tribunal decision) the period for which the arrears were due end over a year ago. That means there are 12 plus original APs on claim 2 to compare to the ‘reset’ APs back to the date of claim of claim 1.
I assume that the UC IT process somehow calculates the ‘arrears’ when the AP is ‘re-set’ - but no one in DWP seems able to explain how!
I suppose I could do this long hand but I’m keen to avoid losing the will to live! Does anyone have a suggestion of a short cut? Or indeed able to explain that calculating the arrears due might actually be impossible without access to the UC IT (no tech speak please).
Incidentally, re-setting the AP can generate other problems due to a ‘ripples on the pond effect’. For example - the re-set AP creates a R(Johnson & others) situation (two salary payments received in 1 AP) that did not arise with the dates of the original AP under claim 2. Aaahhhhhhhhh!
Simplification?
[ Edited: 19 Sep 2019 at 04:17 pm by Peter Turville ]Isn’t it a matter of simply adding the final figures on the new set of statements and comparing that to the total of the old set of statements?
I have seen this in these cases. Rather than trying to rationalise for the period in which benefit wasn’t paid, they are just starting with a blank sheet and then comparing this to what was actually paid.
Let’s say your client is entitled to £500 per month flat. They claim on 01.01.19 and reclaim on 16.02.19 - the first fails and the second succeeds.
As of today, they will have received 6*£500 = £3,000 and will be due another payment on 23.09.19.
Rather than trying to rationalise and pay £750 for the six weeks difference, they are re-calculating from the outset - which in this case means that he should have received 8*£500 = £4,000 with his last payment being made about on 07.09 and next expected around 07.10.
So under the DWP method, he will be paid £1,000 now (his actual entitlement less what he was paid), but will have his paydate pushed back two weeks - so will ultimately end up in the same position.
The DWP are struggling to explain the basis of the “changes” because it isn’t a comparative exercise in the sense of looking over the differences AP for AP. The rationale for what your client gets in the bank is that it is the correct entitlement less money already paid.
So if the entitlement figures now on the journal are correct, and the figure the DWP says already hit your client’s bank over that period is correct, then the arrears are correct.
Isn’t it a matter of simply adding the final figures on the new set of statements and comparing that to the total of the old set of statements?
Charles / Elliot
That was my initial approach but couldn’t reconcile the sums. Of course that could be my arithmetical errors. I will get some of my colleagues to take their socks off too and try again!
Isn’t it a matter of simply adding the final figures on the new set of statements and comparing that to the total of the old set of statements?
Charles / Elliot
That was my initial approach but couldn’t reconcile the sums. Of course that could be my arithmetical errors. I will get some of my colleagues to take their socks off too and try again!
Update - to illustrate the problem when the claimant’s UC account records are ‘over written’ following a revised decision.
The drip feed of info. from DWP reveals that client was paid a further payment under her old AP after the first actual payment on her new AP! That final payment not now being visible on her account.
That now explains how the underpayment was calculated.
Except - the new AP entitlement notices use completely different child care cost elements AP by AP that are not explained by comparison with the child care costs as originally declared (they bear no relation in terms of either dates or amounts!).
Again without access to the original account details I await more ‘drip feed’ from DWP.
[Is there a dog chasing its tail emoji thingy?]
UPDATE
The case has now been set for a Directions Hearing.
The date of claim on the original claim was 18/10/18. The second claim 30/11/18. The appeal (R2R) on the original claim was revised on 25/6/19 by DWP before a 2nd hearing (following adjournment - no DWP submission!) and the appeal lapsed.
An appeal on the second claim had also been made because of the 2 x salary payt in one AP issue (following R v Johnson & others).
Following revision of the decision on the original claim the AP was re-set to the date of claim of the original claim and ‘arrears’ (underpayment) paid on or about 8/7/19. There was no decision notice issued to accompany the underpayment just a simple note in the journal.
The ‘re-set’ AP to the original date of claim meant the issue in the second appeal ‘disappeared’ and therefore DWP lapsed that appeal.
The first actual payment under the ‘re-set’ AP was paid on 24/6/19 i.r.o. 18/5/19 - 17/6/19
But then a ‘final’ payment on the original AP was made on 5/7/19 i.r.o. 30/5/19 - 29/6/19 (that is for a period wholly within the period already covered by the 1st two AP’s from as ‘re-set’ against which the client received actual payments . Again no decision notice was issued with this ‘final’ payment nor even a note on the journal - it just ‘appeared’ in the clients bank account!
As suggested above I can now reconcile the underpayment by ‘adding’ the ‘final’ payment to all of the previous payments made under the old AP and compare against the ‘nominal’ payments under the ‘re-set’ plus the first actual payment made under the new AP to arrive at the sum of the underpayment. No other possible combinations will result in the same figure.
Except that the ‘final’ payment under the original AP has been calculated based on two months salary because of the R v Johnson issue (June salary paid early as pay day fell on a Sunday) - so that issue has been resurrected! I only know this as DWP have included a screen print of the ‘Review an underpayment or underpayment completed’ screen in their submission. This screen is not available on the clients side of the UC account. Interestingly it omits some of the relevant AP’s!
Additionally the allowed child care costs have changed from the original AP payment calculations to those in the -re-set’ ones without explanation. We cannot now access the original costs disclosed via client’s UC account (only the ‘Provide proof of child care costs completed’ message in clients journal - the link in that message only confirms how disclosure was made - not the amounts etc).
DWP have now provided a submission for the Directions Hearing - but it is simply a narrative account - it does not provide any relevant documents (except the ‘Review an underpayment or underpayment completed’ screengrab) or explanation of how the ‘underpayment’ was calculated.
DWP have not explained why the allowed child care costs have changed or how the ‘final’ payment under the original AP was calculated and therefore how the underpayment was calculated. I am assuming it is something to do with how UC Reg. 33 works when the AP is ‘re-set’ but takes into account the child care costs as originally disclosed at the end of the original AP’s.
The lack of clear explanation for the calculation of the underpayment means we are unable to advise our client that the calculation is correct.
Now I expect most readers have already lost the will to live before reaching this point. However, I do think this is an example of issues around how the UC ‘build’ works and DWP’s inability to explain how they have arrived at the underpayment calculation and payment made in this case. We have experienced a similar inability in other ‘complex’ cases (computer says “No” - but we can’t explain why).
We have now made a SAR for the client’s UC records. This has proved most useful in previous ‘complex’ cases. It is also a very useful learning exercise in piecing together how the UC ‘build’ works in practice behind what is visible on the clients UC account!
Perhaps Neil Couling will now explain how this example illustrates how UC has simplified the benefits system?
Have now received a FOI response on this issue https://www.whatdotheyknow.com/request/universal_credit_calculation_of?nocache=incoming-1534867#incoming-1534867
It appears DWP have no internal guidance on how to calculate arrears where Reg 21A is not applied.
I have sent a rephrased FOI request to ask how, in the absence of guidance, DWP calculate the arrears by ref. to legislation.
Isn’t it a matter of simply adding the final figures on the new set of statements and comparing that to the total of the old set of statements?
Charles / Elliott / a.n.other - further thoughts welcome!
The directions hearing has now taken place - extensive directions to DWP.
The judge expressed a preliminary opinion that this method of calculating arrears has no basis in the Regs. because, when comparing the original and re-set APs there will always be a gap at the beginning between the original and revised date of claim (the arrears period) but also a gap or overlap of a partial AP at the ‘end date’ chosen to compare the original & ‘re-set’ AP’s. There is no provision (excepting Reg 21A) in the Regs. to calculate the part APs at either end of the comparator old and re-set AP periods.
A re-set AP would change the original last day of the AP against which circumstances and entitlement are calculated any change (due to issues such as earnings, child care costs, changes in household membership etc). Unless there was no change of circumstances (the claimant was always entitled to exactly the same amount of UC for each AP) one would never be comparing like for like. At best the comparison of the sum old and new APs is a crude ‘work around’.
The judge was also mindful that this is an issue that must occur frequently.
Additionally, if one were to apply Reg 21A to an extended period of more than a single AP similar problems may arise. Although not explicitly stated in Reg 21A the DWP guidance examples at ADM E2114 - 2117 all address a period of less than one month and appear to be addressing the consequences of ‘backdating’ under UC (C&P) Reg. 26 rather than an earlier date of claim following a revision of a the original decision that there was no entitlement due to, for example, no ‘right to reside’.
For arguments sake assume the gap between the original claim as refused and a subsequent claim that was allowed was 15 weeks there is no obvious mechanism by which the DWP could gather the information required to apply Reg 21A because the claimant could not notify any changes on their closed account. Or by which Reg 21A could be applied in practice (at least applying DWPs interpretation of the formula (see E2116) to the 15 week senario.
[edited for typos etc]
[ Edited: 11 Mar 2020 at 01:15 pm by Peter Turville ]I think this is being significantly over-complicated.
The DWP needs to pay your client what they are due for a period from 18/10/18 onward. Provided that the sum of payments made by the DWP is equal to that amount at a given point in time, then your client doesn’t have cause for complaint.
In this case, the liability has been met through a sort of Frankensteined combination of (1) payments for the original 30/11 AP (2) payments for the recalculated AP and (3) an “arrears” payment - but provided these payments all add up to her overall correctly calculated entitlement then the DWP has done its job.
Perhaps it might be easier to think of it as though the DWP had just made a series of random, disjointed payments which had no relationship to anything and had just been pulled out of a hat. If they just happened to line up with her overall entitlement, then that would be good enough.
I can understand what the Judge is saying but I am not sure there is any force in it. It isn’t necessary for the end date of the old award to be reconciled because this will always be achieved by the passage of time - the entitlement for the last days of the old award will be subsumed in the following AP on the recalculated award. This isn’t true of a claim being backdated which is why reg 21A is needed to prevent a situation where the whole claim needs to be uprooted and recalculated for the sake of a week’s backdating.
[ Edited: 11 Mar 2020 at 07:40 pm by Elliot Kent ]I agree with Elliot. Basically, there is no need to reconcile the old APs with the new APs. You only need to reconcile the total payments made to date with the total amount that should have been paid to date.
There is a completely separate issue in checking the calculations of the amounts due for each new AP: as you’ve mentioned the childcare included in each AP has changed due to the change of dates of each AP. Also, it will be necessary to check if any of the new APs include two sets of wages (although, as discussed elsewhere, often that is not detrimental to the claimant).
For the childcare, I would perhaps request that DWP provide a list of childcare costs included in the claim to date, with the following information for each one:
1. amount
2. date of payment
3. period covered by the payment
I think that’s probably the only way to check if they’ve done it correctly. (In my experience, they invariably get childcare costs wrong.)
Reg 21A is pretty clear as to what should happen in cases where the gap is more than a month: there should be one shortened AP, followed by regular monthly APs. As you say, this will require DWP to gather missing information from the claimant for the intervening period.
Using your case as an example, where the first claim was made on 18/10/18, and the second claim on 30/11/18, then under Reg 21A:
AP1: 18/10/18-29/10/18
AP2: 30/10/18-29/11/18
AP3: 30/11/18-29/12/18
etc etc
I agree with Elliot. Basically, there is no need to reconcile the old APs with the new APs. You only need to reconcile the total payments made to date with the total amount that should have been paid to date.
As the judge has suggested there may be no basis within the legislation for that or any other approach save for Reg 21A. Further submissions have been directed on this point. It may overthinking the problem and it may be pragmatic to accept the DWP approach - but is it legally allowable?
My view remains that one cannot make a direct comparison because there is always going to be a gap or overlap when undertaking that reconciliation. That must be the reason why Reg 21A was introduced to get around that problem.
I agree with Elliott that what the DWP appear to be doing in practice when Reg 21A has not been applied is to calculate the liability through a sort of Frankenstein comparison of payments made for the original and recalculated APs. What the judge is raising (and I agree) is does the legislation (explicitly or by interpretation) allow the arrears to be calculated by applying that approach? Or is the legislation silent on the issue (in so far as Reg 21A is applied at the discretion of the SSWP and is not mandatory).
That of course raises the question of why DWP did not apply Reg 21A when it appears to have been introduced to avoid that problem.
What remains unclear is how this Frankenstein calculation is done in practice – does it require human intervention or does the UC IT build undertake this calculation automatically. Is it done consistently in every case (is there more than one Frankenstein)?
Which end of AP dates should be used to undertake that reconciliation? Is it the last day of the AP on the award already paid under the original AP periods (A) before the start date of the first AP of the re-set AP for which an actual payment (B) was made (which mean there would be a gap of X days between (A) & (B)).
Or is it the last day of the final AP as original paid (if different) (C) compared to (B) (which would mean there is an overlap between (C) & (B) of Y days. In our case that overlap C-B is 43 days (with the obvious implication).
I have undertaken those alternative calculations which obviously result in significantly different sums (which also differ from the sum applying Reg 21A).
In practice in our case the DWP have (co-incidently?) compared 7 original and revised APs. That means DWP have compared 30/11/18 – 29/6/19 with 18/10/18 – 17/5/19 and that results in the overlap period of actual payments already made of 43 days. I can see that a different comparison may be detrimental to my client (but that is before the issue of childcare costs and two salary payts in one AP is added into the mix!).
If the arrears period due is significantly longer, for example 15 weeks (3 and a bit APs), would it still be appropriate simply to compare the same number of old and new APs against which payments were actually made?
Charles / Elliott is this the approach you have seen in cases - DWP simply compare the payments made for same number of old and new APs in every case?
Given the DWP have not provided any coherent submissions in this case to date I am not holding my breath for an explanation of what they do in practice and the legal basis for it.
I am conscious of the possibility that this is a boat that it is may be better not to rock.
[ Edited: 12 Mar 2020 at 04:59 pm by shawn mach ]1. Based on what you have said the method the DWP have used results in your client being worse off as they have two wage cheques in a single month and thus lose the ability to apply a work allowance to one payment. Is that right?
2. Reg 21A is in mandatory terms:
a) if conditions in (1)(a) to (c) are met then the regulation applies. They seem to be met in your case.
b) where the regulation applies (as it seems to) then (2) sets the first AP as beginning with the first day of entitlement determined by the new decision (which reverses the previous start date or allows a previously refused claim to be awarded etc).
c) the trick is that the number of days in that first AP can be “determined by the [SSWP]”.
d) Let’s say the number of days between new start date and old start day is 65. The SSWP could set a first AP as being 4 days if the following month had 30 days and the one after that 31 days- this would line up the AP periods with the old award.
e) Or the SSWP could do it differently and say the first AP was to be 65 days long…. although there may be a fairness challenge to that if the claimant lost out on work allowances or something.
f) However, on one reading the SSWP could just set it as however many days there were in the month in question and then go on to (as done in your case) recalculate each and every assessment period. I think that reading is possible as there is nothing that limits “N” (number of days in first AP) to being no more than the number of days between new start date and old start date.
3. However, I don’t think they can lawfully do this final option (ie 2(f) above). This is because:
a) It is plain the purpose of reg 21A is to allow awarding the earlier periods without having to readjust all APs- so a use of it in a way that does not achieve that may be unlawful? See the Explanatory Memorandum as to purpose- paras [7.4-7.6]:
“This allows for payment without resetting all subsequent assessment periods and recalculating awards paid in respect of subsequent assessment periods, which may be administratively difficult and cause confusion for claimants.”
b) Additionally, given the SSWP has a discretion to set the length of the first AP, and that discretion is given for the above purpose perhaps it cannot be used in a different way?
c) Further, again given the discretion, even if the above is wrong, to use the discretion in a way which reduces a claimant’s income due to lost work allowances and not think about that when exercising the discretion is arguably:
i) to fail to take account a relevant consideration when using discretion; and
ii) discriminatory against people who benefit from work allowances (people with kids - more likely to be women and disabled people) and arguably contrary to art 14 ECHR etc. Note that is a different point from the one we attempted to argue in the AP case (which succeeded on other grounds) as it would be a challenge to the exercise of the discretion to set AP length rather than to the attribution of earnings to APs.
d) Additionally, resetting all the assessment periods is likely to cause all sorts of other problems- like what if it means child care costs were not reported at the right time? (they probably don’t check this but it is still a point).
4. So overall, even though one could potentially read reg 21A as allowing them to do what they have done (see my para 2(f) above) then I think that for the reasons in 3 they cannot do so.
I think when they initially made reg 21A they were thinking its only use would be where backdating subsequently allowed under reg 26 of the UC etc. (C&P) Regs. They didn’t appreciate there woudl be much longer periods (for example where claim unlawfully closed and then further claim made etc) that were much longer than a month and so did not appreciate one might have several APs in the period between new start date and old one.
[ Edited: 12 Mar 2020 at 04:51 pm by shawn mach ]
1. Based on what you have said the method the DWP have used results in your client being worse off as they have two wage cheques in a single month and thus lose the ability to apply a work allowance to one payment. Is that right?
2. Reg 21A is in mandatory terms:
a) if conditions in (1)(a) to (c) are met then the regulation applies. They seem to be met in your case.
b) where the regulation applies (as it seems to) then (2) sets the first AP as beginning with the first day of entitlement determined by the new decision (which reverses the previous start date or allows a previously refused claim to be awarded etc).
[....]
Eek- email correspondence with Peter off thread has alerted me to my mistake- reg 21A(1)(c) requires that changing the start date of the APs would “in the opinion of the Secretary of State, cause unnecessary disruption to the administration of the claim”.
The question is whether the FTT can on appeal form their own opinion. “disruption to the administration of the claim” would seem to include possibility claimant ended up overpaid due to lost work allowance.
Sorry.
Yes, I think that you have:
(1) The default under Reg 21(1). The AP is a product of the start date of the claim and is therefore worked out beginning from the first date of entitlement. If the first date of entitlement changes, then you need to change the AP as a natural consequence of that - as the DWP have done here.
(2) The alternative procedure under Reg 21A. This would be appropriate if the first method would cause disruption. E.g. if a claim was going to be backdated by 4 days, it would be wholly disproportionate to review the entire claim rather than just pay 4 days money.
In this case they’ve just used the default. I suppose it could be open to the FtT to direct that the reg 21A procedure should be used, although I doubt it would make much difference. It’s likely just to put your client in a worse position because having an AP which begins on 18th protects her from the Johnson issues.
As the judge has suggested there may be no basis within the legislation for that or any other approach save for Reg 21A. Further submissions have been directed on this point. It may overthinking the problem and it may be pragmatic to accept the DWP approach - but is it legally allowable?
My view remains that one cannot make a direct comparison because there is always going to be a gap or overlap when undertaking that reconciliation. That must be the reason why Reg 21A was introduced to get around that problem.
I agree with Elliott that what the DWP appear to be doing in practice when Reg 21A has not been applied is to calculate the liability through a sort of Frankenstein comparison of payments made for the original and recalculated APs. What the judge is raising (and I agree) is does the legislation (explicitly or by interpretation) allow the arrears to be calculated by applying that approach? Or is the legislation silent on the issue (in so far as Reg 21A is applied at the discretion of the SSWP and is not mandatory).
That of course raises the question of why DWP did not apply Reg 21A when it appears to have been introduced to avoid that problem.
What remains unclear is how this Frankenstein calculation is done in practice – does it require human intervention or does the UC IT build undertake this calculation automatically. Is it done consistently in every case (is there more than one Frankenstein)?
Which end of AP dates should be used to undertake that reconciliation? Is it the last day of the AP on the award already paid under the original AP periods (A) before the start date of the first AP of the re-set AP for which an actual payment (B) was made (which mean there would be a gap of X days between (A) & (B)).
Or is it the last day of the final AP as original paid (if different) (C) compared to (B) (which would mean there is an overlap between (C) & (B) of Y days. In our case that overlap C-B is 43 days (with the obvious implication).
I have undertaken those alternative calculations which obviously result in significantly different sums (which also differ from the sum applying Reg 21A).
In practice in our case the DWP have (co-incidently?) compared 7 original and revised APs. That means DWP have compared 30/11/18 – 29/6/19 with 18/10/18 – 17/5/19 and that results in the overlap period of actual payments already made of 43 days. I can see that a different comparison may be detrimental to my client (but that is before the issue of childcare costs and two salary payts in one AP is added into the mix!).
If the arrears period due is significantly longer, for example 15 weeks (3 and a bit APs), would it still be appropriate simply to compare the same number of old and new APs against which payments were actually made?
Charles / Elliott is this the approach you have seen in cases - DWP simply compare the payments made for same number of old and new APs in every case?
Given the DWP have not provided any coherent submissions in this case to date I am not holding my breath for an explanation of what they do in practice and the legal basis for it.
I am conscious of the possibility that this is a boat that it is may be better not to rock.
I am aware of the danger of repeating what I and others have already said (without adding much), and I apologise in advance if I am doing that, but this is how I see it:
Reg 21A was introduced to save DWP the bother of recalculating each AP, however it is optional. If DWP choose not to use it, then they have NO CHOICE in how to calculate the underpayment, which must be done as follows:
When the first date of entitlement is changed to an earlier date, Reg 21(1) MANDATES the use of that earlier date as the start date of the first AP, and Reg 21(2) ensures that each AP is then each successive calendar month starting from that date.
This means that all the APs using the original (later) start date have no basis in law, and are NULL AND VOID. There can therefore be no “gap” or “overlap” as it is wrong to compare old APs to new APs.
All you are left with are random amounts of money which have been paid to the claimant at random dates, and which are likely to be completely different to the payments that should have been made.
However, those payments have been made, and have to be accounted for. This will be done by calculating how much the claimant should have received to date (under the new APs), and comparing that figure to the actual total amount paid to the claimant to date. Any difference will be the underpayment.
I have now received a response to a FOI request:
“In response to your questions, it may be helpful if I explain the role of the Freedom of
Information Act. The Act provides a right of access to recorded information held by a public
authority like DWP (subject to certain exemptions). The Act does not oblige a public authority
to create new information to answer questions; nor does it require a public authority to give
advice, opinion or explanation in relation to issues/policies under question.
However, in order to be helpful we can confirm that once an award of Universal Credit has
been made, if an earlier claim start date is subsequently determined, then the amount of
arrears is calculated with reference to regulation 21A of The Universal Credit Regulations 2013
(S.I. 2013/376) and no other.
Regulation 21A is the only way that UC arrears are calculated”.
Clearly the DWP response is not accurate!
Although my initialy response was wrong…. I’m not sure it is right to describe use reg of 21A as “optional”-
Once the conditions in reg 21A(1) are met then reg 21A must be used.
The only sense of choice (or option) that there is in the reg 21A(1) conditions is in (c) and that requires the SSWP to be satisfied that using reg 21 would not cause “unnecessary disruption to the aministration of the claim”
(annoying the regs use the word “claim” here where they mean the award as neither the first nor the subsequent claim exist once determined but hey….).
I do think, particularly where there are childcare payments etc. or possibility shifting dates causes double payments in some months etc, then that would count as unnecessary disruption. The FTT can, if someone challenges the choice of reg 21 over reg 21A, I think simply retake the SSWP decision about whether the disruption is unncessary or not.
Yes, my use of the word “optional” was wrong, I agree.
There is an interesting example in ADM E2117. There, a full month backdating is given, but Reg 21A is still used. In my opinion this is wrong, as in such a case it is impossible to say the condition in Reg 21A(1)(c) is met.
It’s interesting however to note the history of E2117. It was originally included as an example of the old backdating rules used for live service claims. Under those rules, the example WAS correct. See for example this version of the ADM, paragraph E2118.
Yes, my use of the word “optional” was wrong, I agree.
There is an interesting example in ADM E2117. There, a full month backdating is given, but Reg 21A is still used. In my opinion this is wrong, as in such a case it is impossible to say the condition in Reg 21A(1)(c) is met.
It’s interesting however to note the history of E2117. It was originally included as an example of the old backdating rules used for live service claims. Under those rules, the example WAS correct. See for example this version of the ADM, paragraph E2118.
I had also puzzled over the relevance of the example in E2117. It is interesting to note that this example (as with the others) is used as an example of applying Reg 21A when the issue is backdating rather that a (much) earlier original date of claim.
I favour your approach in post 9 to applying Reg 21A in a case when the issue is not backdating and the period involved is significantly more than a single AP. To me that would seem the most logical approach - working backwards in whole APs applying the standard calculation and then apply 21A to the earliest period that is only a fraction of an AP.
I had looked back at other cases where reg 21A was not applied (not seen one yet where 21A has been applied!). However, by coincidence the original and subsequent dates of claim were similar (only a couple of days difference) and clients circumstances were unchanged throughout so there was nothing to alert us to consider how the arrears had actually been calculated as the sum paid was the same as the sum estimated by simply calculating X times whole APs.
A response to further FOI - reiterating the original response:
“However, in order to be helpful we can confirm that once an award of Universal Credit has
been made, if an earlier claim start date is subsequently determined, then the amount of
arrears is calculated with reference to regulation 21A of The Universal Credit Regulations 2013
(S.I. 2013/376) and no other.
Regulation 21A is the only way that UC arrears are calculated.”
A further response today:
I have provided a more detailed response below with an
example to illustrate how Regulation (Reg) 21A is applied. I have also added the backdating
and decision maker’s guidance that staff can use.
It is important to note that every case is assessed individually and the outcome depends on the
circumstances that apply.
The main method by which such arrears are calculated is by way of Universal Credit (UC) Reg
21A. There is no need for any other methodology as the calculation under Reg 21A provides
for an extension of the first assessment period by any amount of days, be that 1 day or more.
Although there is a limit of 1 month for back dating, Reg 21A is not limited by this because a
revision of the start date need not be as a result of back dating, It could instead be for some
other reason where the original start date was incorrect, e.g. the person had sought assistance
from DWP on 2nd January to make an on-line claim but although a record of the assistance
request is held, no assistance is forthcoming; the person doesn’t follow this up and eventually
submits a claim without the assistance sought on 1st March. The person may then enquire why
the request for help of 2nd January wasn’t dealt with.
In this example, ‘backdating’ does not apply as the correct date of claim is 2nd January (as
provided under reg 10(1)(b) of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance
and Employment and Support Allowance (Claims and Payments) Regulations 2013), so the first Assessment
Period will be extended back for more than a month from the original start date of 1st March to
the revised (correct) start date of 2nd January.
If I have understood this reply this means the first assessment period can be of what ever length is equal to the period between the original date of claim and the subsequent date of claim. That could be a period of many days (more than 2 months as in the DWP example). That could be a single AP of, for example, 118 days. I don’t see how that could work in practice. For example the max entitlement calculated at 1 x the standard allowances (for a single AP) or x 12 divided by 118? But taking into account all income received during the 118 days?
I don’t see what the point is of engaging with the FOI response as it is obviously incorrect by reference to literally every case I have ever dealt with.
I don’t see what the point is of engaging with the FOI response as it is obviously incorrect by reference to literally every case I have ever dealt with.
Elliott - indeed!! I can provide it as evidence to the tribunal that the DWP are unable to explain (with ref to regs or guidance) what it does in practice / has done in my case. I still need to work out what the implication is for the case or what decision, if any, the tribunal could make.
If nothing else it is an example of problems with the UC ‘build’ that DWP doesn’t appear to be able / want to explain.
Coupled with other cases with IT build issues, use of SAR etc. it does give an insight to the problems in general and the intricate detail of how UC works (or does not) ‘behind the scenes’ of a UC account that cannot be seen from the claimants side. I am amazed by the sheer number of screen etc involved in a claimants account (compared to the IS or ESA/JSA builds) - I know I shouldn’t be but perhaps that’s just the Supp Ben assessor in me coming out again!.
Well yes, but the answer is straightforwardly that the award needs to be calculated de novo by reference to the correct start date unless the decision maker considers that it would be more practical to generate a payment for a partial AP by using reg 21A. This is the system which is used up and down the country every day without incident. I am not sure why the FOI officer is trying to reinvent the wheel rather than just saying that.
And in the context of an appeal, frankly I think that there is almost nothing you can ask for in terms of a remedy. You are, in the best case, verging on the borderlines of what the Tribunal even has jurisdiction over.
And in the context of an appeal, frankly I think that there is almost nothing you can ask for in terms of a remedy. You are, in the best case, verging on the borderlines of what the Tribunal even has jurisdiction over.
You may well be correct - however that is certainly not the view the DTJ has taken so far given the Directions now made to the DWP - as they say ‘we shall see’.
UPDATE
I received a tel. call from an appeal writer some months ago who agreed (on our submission) that the arrears paid to our client were wrong. He said he did not know how the system calculated the arrears in such case (but they had seen problems in other such cases). He suggested he would have to re-calculate by hand.
I have now received a detailed sub. from the SSWP setting out those new calculation and confirming the original arrears calc was wrong (mostly failure to take account of eligible childcare costs disclosed by client on original disallowed claim). I still haven’t established whether the original calc. was entirely system generated or involved some human input.
The sub. states the calculations are a process of offsetting under Social Security (Payments & Overpayments) Reg. 16. along the lines set out by Elliott & Charles above (and clearly done in this case and others I have seen).
What is of concern is that the system did not correctly calculate the arrears 1st time around - perhaps something to watch out for in other similar cases?
As the balance of arrears now due are not in dispute have requested the SSWP now revises the decision under appeal and lapse the appeal.
Good work Peter on pulling that particular thread until you got a result.
Certainly there are lots of issues with underpayments being miscalculated as a result of either problems with the computer system or the information input into that system.
Good work Peter on pulling that particular thread until you got a result.
Certainly there are lots of issues with underpayments being miscalculated as a result of either problems with the computer system or the information input into that system.
Yes, such issues appear to be a feature of this ‘simplified’ system.
I’m sure a lot of advisers come across issues where something ‘doesn’t feel right’ but it is very difficult to establish enough facts to clarify a concern. We are finding SAR (and FOI) can be a useful, if time consuming, way to gather the info required (and a useful learning experience of seeing what goes on ‘behind the scenes’ in the way the UC IT system works (or doesn’t), records information, etc.).