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Defective UC claim but Tax Credits stopped anyway - no appealable decision: advice needed!
Hi - you say they didn’t complete the UC claim but if they had an interview offered at the jobcentre i think they must have. Once they click submit on the online claim then it has been made. The CPAG article says -
In summary, it seems likely that, in most cases, the arguments that a claim is defective and thus that legacy benefits should not be terminated will work only up to the point before the online journal records that the claim has been submitted. Advisers should be cautious with arguments to the contrary, as it is likely that in the future it will be in claimants’ interest more generally to argue for the widest possible conception of when a valid claim counts as having been made.
So I think it would be hard to argue that the claim is defective - it appears from what they say that they have a journal and a to do list so the claim is made. They won’t receive any paperwork - the email they had is the alert to go online and look at their journal. If they don’t provide all the evidence they need to within a month of the claim then it could be refused and they won’t get the universal credit but unfortunately they also won’t be able to get back on tax credits so I think they probably need to do as the email says.
On the letter from tax credits I can’t see why they can’t accept an MR on the in-year decision. But, as I understand it, once the end of year decision (or end of claim in this case) is made then it replaces the in-year decision so you would need to request a MR on that one anyway. But I’m not an expert on tax credits so I stand to be corrected!
Edit - though you might be able to argue that the Secretary of State hasn’t yet satisfied herself that the claimants meet the basic conditions (age, not receiving education and in Great Britain including having R2R) and therefore they could still withdraw the claim?? And reg 8 of the UC (TP) regs does not apply and so tax credits shouldn’t be stopped? - See https://www.rightsnet.org.uk/forums/viewthread/13433/
[ Edited: 24 Sep 2018 at 10:48 am by Daphne ]
Hi EKS
There may be an issue with the right of appeal against the decision to terminate TCs under UC(TP) Reg 8. For tax credits, decisions with a right of appeal are listed under TCA s38 - this includes the final part-year decision on entitlement, as this is a s18 decision, as amended by Reg 12A and the Schedule of the UC(TP) Regs, But this decision is only made after the tax credits award terminated and a final notice sent, so it’s not clear that it also contains the termination decision itself, which is the part you want to challenge. It still seems worth putting in a MR/appeal against the s18 decision for 2018/19 re end date of entitlement, arguing the SoS cannot have been satisfied basic conditions met, as Daphne said, so Reg 12A could not apply and the decision should not have been made at all.
They could also try to make a new tax credits claim now (even though it is a full service area) and argue that the provision that allows renewal claims for tax credits in The Welfare Reform Act 2012 (Commencement No. 23 and Transitional and Transitory Provisions) Order 2015 Article 7(6), is worded in a way which can apply in this case:
(6) Paragraph (1) does not apply to a claim for a tax credit where a person is or was, or persons are or were, entitled to child tax credit or working tax credit in respect of a tax year and that person or those persons makes or make (or is or are treated as making) a claim for that tax credit for the next tax year.
Even if this is accepted, a new claim for tax credits is not possible under UC(TP) Reg 6 if the claimant is entitled to UC, or still waiting for a decision on a UC claim.
Mark
I think it worth saying that the stuff in the article is based on what we think is arguable. The DWP and HMRC take a different view (as indicated for example in the recent memo to LAs).
Given that, I think it really risky to actually advise a claimant to withdraw a UC claim etc.
I also think it worth highlighting what may or may not count as a “defective claim” for UC- my view at present is that if the claimant gets to the “submit claim” button on the online system and presses that then it is highly unlikely they will have made a defective claim- the system forces them to submit answers to all questions so hard to see the claim as defective (a zeroed out bank account may count as defective however).
Going to the interview etc. is not part of making a procedurally effective claim but seems to be accepted by the DWP as part of providing information post having made such a claim.
Martin
UT decision which finds that stop notice sent to tax credits - following a UC claim which claimant made in error and then withdrew - was valid as SofS was satisfied basic conditions - age, education , and presence in Great Britain - were met - [2018] UKUT 306 (AAC)
This means that either:
1. No UC claimant can ever fail the R2R test after a legacy benefit stop notice has been issued, or
2. Judge Jacobs was given incorrect evidence about the point when a stop notice is issued.
So let’s keep an eye open for adverse R2R decisions accompanying legacy stop notices: a legal impossibility according to Judge Jacobs
Paragraph 9 seems to be the relevant bit but the Judgement is fairly useless without further explanation:
“The tribunal needed some evidence to link the stop notice itself to the Secretary of State being
satisfied about the basic conditions. All that was required was an explanation of
the system that led to the notice being issued. Mr Eland has provided that.”
But there’s no detail of what was contained in Mr Eland’s explanation, we just know that it was good enough for Judge Jacobs… a bit more clarification would have been helpful!
[ Edited: 9 Oct 2018 at 12:12 pm by samiam ]This means that either:
1. No UC claimant can ever fail the R2R test after a legacy benefit stop notice has been issued, or
2. Judge Jacobs was given incorrect evidence about the point when a stop notice is issued.So let’s keep an eye open for adverse R2R decisions accompanying legacy stop notices: a legal impossibility according to Judge Jacobs
I’m not quite sure I understand you - at least so far as the RtR issue is concerned. I’ve recently won an appeal where the claimant withdrew his UC claim after two days and prior to his hab res interview (the interview was a certainty, I cannot think of an EU national UC claimant who hasn’t been required to have one). So the argument was that a) the stop notice is computer generated and issued immediately the online claim is completed and b) the soS could not possibly have satisfied herself the claimant was in GB prior to the withdrawal and certainly not in circumstances where the hab res interview was yet to take place. I cannot see anything in the Judge Jacobs’ decision that would not allow that argument to succeed?
LA have gone for a statement, though, so maybe we’ll see…...
On a separate reg. 8 TP Regs issue, I have a client who claimed and was awarded UC for 3 kids during the interim period. Overpayment and termination 9 months later when UC realised…...
Reg. 8 kicks in where a claim for UC is made - but reg 39 says no claim can be made by someone with 3 kids…..
Can a ‘claim’ be made for the purposes of reg. 8 termination, but not for the purposes of reg. 39? I think not…..
My tone of voice obviously didn’t come across there Simon … I was suggesting that I suspect 2 is the case and I was being sarcastic at 1. Looks to me as if Judge Jacobs has been given evidence that is completely at odds with the reality and I agree 100% with the Tribunal’s decision in your case.
OK cheers - I’m part-time Tuesday to Friday, so this was actually a Monday morning moment for me….....
:)
Paragraph 9 seems to be the relevant bit but the Judgement is fairly useless without further explanation:
“The tribunal needed some evidence to link the stop notice itself to the Secretary of State being
satisfied about the basic conditions. All that was required was an explanation of
the system that led to the notice being issued. Mr Eland has provided that.”But there’s no detail of what was contained in Mr Eland’s explanation, we just know that it was good enough for Judge Jacobs… a bit more clarification would have been helpful!
I must admit, I read that as pertaining to Mr Eland’s confirmation about the stop notice being issued - I see nothing at all about the basic conditions being satisfied.
See also para. 11 “I have considered whether the withdrawal of the claim had retrospective effect so that there never was a claim. I am not aware of any decision in which the retrospective effect of withdrawal has been considered. My reading of regulation 8(1) is that it requires the simultaneous existence of a claim and the Secretary of State’s satisfaction on the basic conditions. “ amd again, I see nothing to confirm the basic conditions having been satisfied, for the r2r reasons highlighted above.
Have re-read it but not sure I agree with you…
He says that the existence of a stop notice is not sufficient evidence on its own - there needs to be:
“evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions” i.e. evidence that the stop notice is not sent until basic conditions are met.
This evidence can take the form of:
“an explanation of the system that led to the notice being issued” and “Mr Eland has provided that”
I routinely see stop notices issued on the same day the UC claim is made, so clearly UC can’t have had time to satisfy themselves that basic criteria are met… Which is why I’d be interested to understand more about the system that leads to notices being issued - but it isn’t included in the Judgement.
Have re-read it but not sure I agree with you…
He says that the existence of a stop notice is not sufficient evidence on its own - there needs to be:
“evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions” i.e. evidence that the stop notice is not sent until basic conditions are met.
This evidence can take the form of:
“an explanation of the system that led to the notice being issued” and “Mr Eland has provided that”
I routinely see stop notices issued on the same day the UC claim is made, so clearly UC can’t have had time to satisfy themselves that basic criteria are met… Which is why I’d be interested to understand more about the system that leads to notices being issued - but it isn’t included in the Judgement.
I think you misread me - I’m saying I can’t see any evidence in Judge Jacobs’ decision about how he is satsfied the basic conditions are met. I agree that if the stop notice is automatically issued when the submit claim is pressed, the DWP cannot have established this.
“I think you misread me - I’m saying I can’t see any evidence in Judge Jacobs’ decision about how he is satsfied the basic conditions are met. I agree that if the stop notice is automatically issued when the submit claim is pressed, the DWP cannot have established this.”
But if he has explicitly said that such evidence is required, it would seem rather odd to then go ahead and issue a decision without it (so we can assume there was some evidence along these lines). It’s particularly annoying that the explanation isn’t included in the Judgement given that the whole decision turns on this one issue.
Looking at the decision again;
The UC claim was made 11/1/2017 and the UC termination decision (following the claimant’s request for withdrawal) on 6/2/2017 - so approaching a month later.
Judge Jacobs says this;
Mr Eland, for the Commissioners, has submitted that all that mattered was the existence of the stop notice, not its content. I do not accept that. The tribunal needed some evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions. All that was required was an explanation of the system that led to the notice being issued. Mr Eland has provided that. It would be better if that information were provided as part of the appeal submission to the First-tier Tribunal. The tribunal should have given directions for the omission to be remedied rather than decide the case on (what the judge considered to be) inadequate evidence.
As I’ve said previously, in all cases that I have seen involving EU national claimants, they are required to attend a habitual residence interview - that might take place a week or two after the claim is made. But it is only in cases where the DWP decides the claimant does not have a right to reside that a decision is issued - usually, a week or so after the interview. Otherwise, the claim proceeds as normal. There is no ‘positive’ right to reside decision issued, though the journal may contain an entry ‘you attended your habitual residence interview’ or words to that effect.
I imagine similar happens with the other basic conditions;
(a) is at least 18 years old, - presumably established by online ID verification at the time of claim or at evidence interview
(b) has not reached the qualifying age for state pension credit, as above
(c) is in Great Britain, discussed elsewhere
(d) is not receiving education, {b]established when claiming//evidence interview?
There is nothing to suggest that right to reside considerations were an issue in this case. So the ‘evidence’ supplied by Mr Eland - who, let us remember, was acting for HMRC, not the DWP - may have been no more than confirmation that the claimant was entitled to and in fact paid UC up to the point that the claim was withdrawn. Nothing more would have been required in this case.
But Judge Jacobs says “Mr Eland, for the Commissioners, has submitted that all that mattered was the existence of the stop notice, not its content. I do not accept that. The tribunal needed some evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions.”
I think that’s the crucial bit that has applicability to other cases. It doesn’t negate any of the arguments we might wish to make about withdrawal of claims or the SoS not having satisfied herself the basic conditions were met in cases with better facts….
...may have been no more than confirmation that the claimant was entitled to and in fact paid UC up to the point that the claim was withdrawn. Nothing more would have been required in this case.
I agree, although I hope the evidence was at least put to the claimant. If I had to decide an appeal from Judge Jacobs’s decision I’m not sure I could honestly say his reasons are sufficient to enable LH to understand why she has now lost.