Can NI credits overlap i.e. underlying entitlement?

Andyp5 Citizens Advice Bridport & District - 25 March 2022 05:39 PM

Client was in receipt of IR ESA and was found to have LCWRA.

Client meets partner, IR ESA stops because of partners income. Client claims CA is credited with class 1 carers credits. Would a continuing underlying entitlement to LCW credits have continued in parallel?

Client’s partner passes away they claim UC, CA ceases after 8 weeks.

Would client have retained a continuing underlying entitlement to LCWRA elements even though the carers class 1 credits would take precedence? That carried the LCWRA over to UC on the basis of Reg 21 UC (TP) regs 2014?

Or is it an either or either situation receipt of class 1 credits to the exclusion of class 3 credits?

Ps

Got any thoughts on 8 weeks into the UC claim, CA ceases i.e. NIC’s as well as payments. Would the previous LCW/LCWRA NI credits re-emerge for example?

I think you are just entitled to credits on any or all bases which might apply. I don’t think there is any question of one type of credit taking precedence over another. Probably the HMRC computer will only say that you were credited for one reason - because the fact that you had the same entitlement for one period on multiple bases isn’t likely to be relevant for their purposes - but I am not sure that is the same as no longer being entitled to credits on the other basis.

There might still be practical issues. For instance your client may have decided that there was no point going along with a further WCA once he was getting CA and therefore would have been treated as no longer LCW for that reason.

And in any case, wouldn’t your punter qualify for class 1 credits whether its due to the LCW or the CA?

Elliot Kent - 29 March 2022 03:02 PM

I think you are just entitled to credits on any or all bases which might apply. I don’t think there is any question of one type of credit taking precedence over another. Probably the HMRC computer will only say that you were credited for one reason - because the fact that you had the same entitlement for one period on multiple bases isn’t likely to be relevant for their purposes - but I am not sure that is the same as no longer being entitled to credits on the other basis.

There might still be practical issues. For instance your client may have decided that there was no point going along with a further WCA once he was getting CA and therefore would have been treated as no longer LCW for that reason.

And in any case, wouldn’t your punter qualify for class 1 credits whether its due to the LCW or the CA?

Phew thanks responding Elliot.

Regarding the first point, can you or anyone point me to any sources?

The practical issues we are conscious of but we’ll see what happened.

The class 1 credits per se are not the issue in this case that we concerned about. Its whether we can argue with the caveat of the ‘practical issues’ to be resolved. That the LCW credits could on the basis of having been found to have LCWRA in the past carry over or carry back from when the claim was originally made in 2020

It’s just the Social Security (Credits) Regulations 1975.

Your client was entitled to class 1 credits under reg 8B(2)(a)(iv) when the ESA ended because they have an LCW assessment. That will be true unless they have ceased to have LCW for some reason (e.g. not returning an ESA50).

Your client also became entitled to class 1 credits under reg 7A when CA was awarded.

Reg 21(1)(a) of the UC TP Regs then applies :

(a) an award of universal credit is made to a claimant who was entitled to be credited with earnings equal to the lower earnings limit then in force under regulation 8B(2)(iv), (iva) or (v) of the Social Security (Credits) Regulations 1975 (“the 1975 Regulations”) on the date on which the claim for universal credit was made or treated as made (the “relevant date”)

Which surely applies to a person who qualifies for credits under both Reg 8B(2)(a)(iv) and Reg 7A.

The point I was making about class 1 credits was just in reference to your post, as you had implied that the credits from LCW would only be class 3 - which would perhaps make it more logical for them to be ‘overridden’ by the (strictly better) class 1 credits.

Elliot Kent - 29 March 2022 04:13 PM

It’s just the Social Security (Credits) Regulations 1975.

Your client was entitled to class 1 credits under reg 8B(2)(a)(iv) when the ESA ended because they have an LCW assessment. That will be true unless they have ceased to have LCW for some reason (e.g. not returning an ESA50).

Your client also became entitled to class 1 credits under reg 7A when CA was awarded.

Reg 21(1)(a) of the UC TP Regs then applies :

(a) an award of universal credit is made to a claimant who was entitled to be credited with earnings equal to the lower earnings limit then in force under regulation 8B(2)(iv), (iva) or (v) of the Social Security (Credits) Regulations 1975 (“the 1975 Regulations”) on the date on which the claim for universal credit was made or treated as made (the “relevant date”)

Which surely applies to a person who qualifies for credits under both Reg 8B(2)(a)(iv) and Reg 7A.

The point I was making about class 1 credits was just in reference to your post, as you had implied that the credits from LCW would only be class 3 - which would perhaps make it more logical for them to be ‘overridden’ by the (strictly better) class 1 credits.

[/quote

Ok so looks like I misunderstood Reg 7A(2)(a) reference to 8B thinking it was an either or either etc etc. Which didn’t make sense….........

Class 3 silly me!

As always thank you so much Elliot for all the time and explaining.

Andyp5 Citizens Advice Bridport & District - 29 March 2022 04:29 PM

Ok so looks like I misunderstood Reg 7A(2)(a) reference to 8B thinking it was an either or either etc etc. Which didn’t make sense….........

Well in fact that is my error.

What reg 7A(2) says is:

(2) Paragraph (1) shall not apply—

(a)to a person in respect of any week where he is entitled to be credited with earnings under regulation 8A or 8B in respect of the same week; or

i.e. your client did not qualify for credits as a carer because he qualified for credits for LCW.

So in fact there is a precedence - but it works in your clients favour because the LCW credits under reg 8B take precedence over the CA credits.

Elliot Kent - 29 March 2022 04:50 PM

Andyp5 Citizens Advice Bridport & District - 29 March 2022 04:29 PM

Ok so looks like I misunderstood Reg 7A(2)(a) reference to 8B thinking it was an either or either etc etc. Which didn’t make sense….........

Well in fact that is my error.

What reg 7A(2) says is:

(2) Paragraph (1) shall not apply—

(a)to a person in respect of any week where he is entitled to be credited with earnings under regulation 8A or 8B in respect of the same week; or

i.e. your client did not qualify for credits as a carer because he qualified for credits for LCW.

So in fact there is a precedence - but it works in your clients favour because the LCW credits under reg 8B take precedence over the CA credits.

That’s what I wondered but it felt counterintuitive.

Oh well thanks again regardless Elliot nonetheless you saved me from myself!!

The response from the DWP Complaints Team to MP attached.

Ps apologies in advance. The contents involve language/terminology that may offend!

We have responded to the attached response from the DWP, can’t bring myself to comment on it other than the following sources may be of interest / help to others. We cited in our response.

R (Anufrijeva) v Secretary of State for the Home Department & Another [2003] UK HL 36 held ‘The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115’ (paragraph 26).

https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030626/anuf-1.htm

Past guidance 01015
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1046476/dmg-chapter-01.pdf

Current guidance A1015 - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1065165/adma1.pdf

Baroness Hale as lead judge in the House of Lords hearing Kerr v Department for Social development for Northern Ireland [reported as R1/04(SF)] held ‘What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and w​hat information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced (paragraph 62)’.

‘If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself’ (paragraph 63).

https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-3.htm

Is it not something which would be better addressed in the appeals process?

You might persuade an FtT judge to find that events did not take place in line with the DWP’s guess, but I doubt a DWP complaints handler will accept as much.

Elliot Kent - 11 May 2022 03:25 PM

Is it not something which would be better addressed in the appeals process?

You might persuade an FtT judge to find that events did not take place in line with the DWP’s guess, but I doubt a DWP complaints handler will accept as much.

Absolutely, Elliot! Thanks for the response really appreciated!

That said it serves as a tactic and as a social policy angle the DWP response was to a MP. We have coupled this escalation approach with MP’s with parallel challenges i.e. along with conventional approaches on specific cases e.g. can include MR’s albeit not run of the mill cases, to expedite those cases and focus minds.

Arguably, this is a such case, the days of DWP devolved decision making has long gone and the DWP landscape has changed irrevocably.

As a basic 1st tier advice agency largely dependent on volunteers / unpaid workers we have to be imaginative when it comes to advocacy utilising orthodoxy with what may be deemed as unconventional methodology.

“….we have to be imaginative when it comes to advocacy utilising orthodoxy with what may be deemed as unconventional methodology”.

Careful Andy.  You’ve got one foot in the jargon jungle there. :)

nevip - 12 May 2022 08:58 AM

“….we have to be imaginative when it comes to advocacy utilising orthodoxy with what may be deemed as unconventional methodology”.

Careful Andy.  You’ve got one foot in the jargon jungle there. :)

Thanks for reaching out to me Paul regarding my direction of travel.

Erm nothing!!!

I’ll seek help!!!!!!!!!!!

Andyp5 Citizens Advice Bridport & District - 12 May 2022 12:27 PM

nevip - 12 May 2022 08:58 AM

“….we have to be imaginative when it comes to advocacy utilising orthodoxy with what may be deemed as unconventional methodology”.

Careful Andy.  You’ve got one foot in the jargon jungle there. :)

Thanks for reaching out to me Paul regarding my direction of travel.

Erm nothing!!!

I’ll seek help!!!!!!!!!!!

 

Chortle!

does anyone know how this would work with credits only ESA and then claiming UC?

would the LCW class 1 credits override the class 3 UC credits?

No because the effect of reg 8B(2A) Credits Regs is that you stop qualifying for the class 1 credits for LCW when you are awarded UC unless you have an ESA award.

This is one of the various small benefits of having a dual-claim of both nsESA and UC - it lets you keep your class 1 credits.

See extract from DWP response awarding LCWRA credits from 2014 until date UC claimed 2020.

Thanks Elliot et al for the help etc.

Excellent result, got there in the end. Although they still can’t help themselves from talking about a “credits only claim”.

Elliot Kent - 21 June 2022 12:45 PM

Excellent result, got there in the end. Although they still can’t help themselves from talking about a “credits only claim”.

Thanks Elliot!

Or making an actual payment i.e. the LCWRA element from Dec 2020 despite awarding the LCWRA credits for the relevant period, we are escalating that via MP to get a quick resolution. Client is learning disabled and has multiple health issues. 

They did make a £50 consolatory payment.

In our email to the client’s MP regarding paying the LCWRA element we added links to https://questions-statements.parliament.uk/written-questions/detail/2021-12-15/93777 and https://assets.publishing.service.gov.uk/media/628e2c55e90e071f6af1466c/UA_2021_001444_ULCWc.pdf

I know I know, that said its one way of raising awareness regarding UC administration, MP from an adjoining constituency.

Edited as one of the links didn’t work.

https://assets.publishing.service.gov.uk/media/628e2c55e90e071f6af1466c/UA_2021_001444_ULCWc.pdf