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UC failure to report earnings and claim closure
Comrades,
Looking for clarification about what can be done if anything when the UC claim is closed due to failure to report SE earnings.
I have a client who is self-employed and profoundly deaf with communication issues. She claimed UC and was not given the self-employment fact sheet (UCD5 self-employment guide). A BSL interpreter attended her GSE interview but not the meetings with her job coach (even through requested). Consequently, she was confused about what she was obliged to do.
Her UC journal shows the DWP staff reminding her at different points of each month to report her earnings but not explaining the rule. She reports her earnings after these warnings, apart from the last occasion when there were lots of issues going on in her personal life and she forgot to log on to her journal.
Her claim was closed 30 days after the final day she should have reported her earnings. No decision letter given.
I have asked the DWP to clarify what reg they are replying on when they do this. They have so far failed to do so.
Is regulation 47 of the UC etc (decision and appeals) regulation the relevant regulation here?
If so, I need to understand:
1. Whether the DWP have to produce a decision on this basis
2. Whether such a decision is appealable?
3. If it is an appealable decision, what can be done in practise when no decision is produced and journal shut down immediately (as in the present case).
3. Whether you can argue any mitigating factors to get the claim reopened rather than have to make a new claim (and lose out on UC?)
In solidarity,
EKS
Comrades,
[....]
Her claim was closed 30 days after the final day she should have reported her earnings. No decision letter given.
[....]
Is regulation 47 of the UC etc (decision and appeals) regulation the relevant regulation here?If so, I need to understand:
1. Whether the DWP have to produce a decision on this basis
2. Whether such a decision is appealable?
3. If it is an appealable decision, what can be done in practise when no decision is produced and journal shut down immediately (as in the present case).
3. Whether you can argue any mitigating factors to get the claim reopened rather than have to make a new claim (and lose out on UC?)In solidarity,
EKS
Hi Emma,
1. This does indeed sound like an attempt at using reg. 47 UC etc. (D&A) Regs 2013 to terminate an award of benefit.
2. Such a decision is a supersession made on the ground that circumstances have changed in that the reg. 47 conditions are now met and so award must be ended (see R(H)4/08 on the similar HB/CTB provisions)
3. There is a right of appeal (once MR completed etc) and claimant must be notified of decision and appeal rights etc (reg. 7 of the UC etc. (D&A) Regs 2013).
4. I note you say no decision produced and journal shut down immediately- have they in fact actually removed the journal or simply locked it? In my experience what they do is post the decision to the journal and then disable further posts. In this case you can get the letter from the locked journal, copy the rest of the journal and then reclaim and post MR request to the new journal.
5. I would definitely pursue both a new claim and a challenge to the termination decision at the same time- the new claim protects your client in case this is one of the (very few) decisions where the suspension and termination process was correctly followed and the decision is lawful.
6. In terms of grounds for overturning the termination decision then:
a) the first thing I note is you say it was “30 days” from when she should have reported her earnings. The reg. says “more than one month” must have elapsed between the award being suspended and the termination decision.
b) secondly, you don’t refer to the award having first been suspended- which again is the requirement of the reg.
c) thirdly, reg.45(4) allows the SSWP to extend the 14 day period to supply information. reg. 45(3) requires the SSWP to notify the claimants of the requirement of the regulation - which would include telling them the time could be extended etc. If they failed to do that in the correct form then there would be an argument the time for terminating has not yet arisen.
Generally, I would reccommend having a look at the Sweet and Maxwell or Findlay commentary on the equivalent provisions under the HB or legacy benefit schemes (regs 11-14 HB&CTB;(D&A) Regs 2001 or regs 16-18 of SS&CS;(D&A) Regs 1999). The cases show that given termination is a draconian result for a claimant who fails to take a necessary administrative step but could well be still entitled substantively, then Tribunals should insist on strict compliance with the procedural steps the DWP is supposed to take to enable termination to take place.
I would be interested in anonymised copies of any suspension or termination letters from UC.
Martin
Martin, thanks so much for all this and getting back to me super quick.
So in this case they did remove the journal - client had to reclaim again.
Basically I logged in to the clients journal, saw the claim had been suspended and the reason given in the journal. No decision letter.
Client went back on to re-claim; there is a new journal. No decision letter anywhere.
I believe I have already requested a copy of the decision but I will do so again, then put in MR etc and update on the result and any relevant paperwork.
Thanks again.
EKS
Hiya,
How much UC did claimant lose out on as a result of this mess?
Possibly one that CPAG could do a pre-action letter about if it turns out to be the case that DWP are ending awards of benefit without actually issuing a notification.
Martin