New claim for legacy benefit where person is a "UC claimant" for purposes of reg. 6 (2)(e)(i) & (ii) UC (Transitional Provisions) Regs 2014&

Me and my colleague are a bit stumped on this one - it’s her case.

Scenario;

Couple claiming UC, 4 kids - benefit in payment until Feb 2017 when decision made that female member of couple has failed to accept latest claimant commitment. MR and appeal. Appeal heard start of September - adjourned with directions that department produces various documents including the disputed claimant commitment. No new listing as yet.

Before coming to us they successfully made new claims for IR-ESA and CTC. Quite how that came to pass I’m unsure, because they would appear to have been caught by reg. 6 (1) and (2)(I) and (ii) of the UC (Transitional Provisions) Regulations 2014 - basically, you can’t make a new claim for legacy benefits if you are a ‘UC claimant’ and you are a UC claimant if you have an MR or appeal which has yet to be determined. Nevertheless, this is what happened.

The HB claim (made 2/5/2017) was refused /4/8/2017 on the basis of the claim having been made within 6 months of UC entitlement. It seems the claim could alternatively have been refused under the above provisions as well.

I know the ‘correct’ answer is that a new claim for UC should have been made as the terms of reg. 39 (1)(a) the Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) Amendment Regulations 2017 could have been met - i.e. a new claim within 6 months. But that ship has sailed.

So we’re now in a situation where a new UC claim can’t be made and where they’re caught by reg. 6 (1) and (2)(ii) until the appeal is decided. All well and good if they win, as housing costs will be covered by arrears of UC - but if they lose it will only be at that point that cease to be defined as a ‘UC claimant’ and can make a new HB claim. In the interim, rent arrears continue to mount.

I can’t see a way around this, or am I missing something?

Live or full?

Full.

I am interested more for the future - i.e. where someone with 3 kids or more who could have made a repeat UC claim (but for whatever reason didn’t) is now outside the 6 months but still caught by 6 (2)(e) (i) or (ii).

Our cases come by referral - and the vast majority at the stage where an appeal is about to be/already has been lodged - and consequently where we’re often also having to try to undo what’s gone before…..

Difficult to get past Reg 6 isn’t it.  While Reg 6 is largely rendered obsolete in a full service area by the more sweeping Article 7 of the No. 23 Order, there doesn’t seem to be anything anywhere to say that where Article 7 applies Reg 6 no longer applies: they exist side by side and you have discovered a case where it is possible for Reg 6 to block a legacy claim even though Article 7 does not.  Article 7(2) permits an HB claim where a family with >2 children have been off UC for six months, but Reg 6 still blocks it if that family has any UC issues outstanding.

I suppose the policy intention is that once you have claimed UC you should challenge adverse decisions within the UC system rather than reverting to legacy benefits.  As you say, for the same reason their ESA and CTC claims should also have been rejected, leaving them to fight the UC appeal.

My first thought was that they have got lucky with the ESA and CTC, which at least enables them to eat while they challenge the UC decision so they are in a better position than many others.  But then I realised if they had been properly advised at the time of their ESA/CTC claims they would have had a new UC claim up and running allowing them to eat and pay rent as well, with the UC appeal only affecting a closed period.  I think the solution if the appeal fails will be a complaint seeking compensation equal to the difference between the ESA and CTC they have received and the UC they should have received instead (on the assumption that they would have accepted the claimant commitment second time around).

Thanks. Glad to know I wasn’t missing something obvious.

In fact, they have got lucky in that I’ve just learned from my colleague (who wasn’t here yesterday) that UC have now revised the termination decision and lapsed the appeal - but have awarded UC only up to the date that legacy benefits were awarded. My view is that is again wrong and that UC needs to continue in payment with what has been paid by way of legacy benefits offset against arrears of UC. And so far as possible, we try to get that sorted out via pressure/complaint/administratively so as to avoid putting them back into reg. 6(2)(e).

But as they’re no longer caught by that provision, I’m tempted to advise on a new HB claim - the rent can be paid whilst the UC is sorted out.