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An open letter to the author of HB Circular A7/2018
My inbox has been inundated with questions about paragraph 8 of the Circular, and about the options available to people in the situations listed in the Annex to the Circular. It is clear that many HB staff would be very interested to know the Department’s views on the following points.
Withdrawn/unsuccessful UC claims:
• Can you comment on the comments in R(H) 2/06 about the legal effect of withdrawing a claim?
• If you do not consider that a Commissioner’s decision on the withdrawal of an HB claim under HB Reg 87(4) and (6) applies to the withdrawal of a UC claim under Reg 31(1) and (2) (which appears to have almost identical wording) please say why
• Irrespective of the general legal effect of withdrawing claims, do you agree that in a case where a UC claim by an EEA national is withdrawn before the HRT interview has been carried out or before the HRT questionnaire has been returned, Regulation 8 of the UC(TP) Regs 2014 does not apply because DWP has not yet considered the condition in s4(1)(c) of the 2012 Act?
• Do you agree that in a case where the claimant’s UC claim is rejected on the basis that s/he is not in Great Britain, or treated as not in Great Britain, Regulation 8 does not apply? Do you agree that in such a case HB may continue if, in the opinion of the Council, the claimant satisfies the HB habitual residence test? If not, why not?
• Generally, at what stage of the UC claim process would DWP typically be satisfied that the conditions in s4(1)(c) and (d) are met?
• Do you agree that if the claim is withdrawn or rejected for any reason before those conditions have been considered, Reg 8 does not apply? If you do not agree, why not?
• There does not appear to be anything in either the UC(TP) Regs or Article 7 of the No 23 Order that prevents a decision to end HB under Reg 8 from being revised if the Council subsequently considers that that decision was not correct. If you believe that such a decision cannot be revised, please provide a reference to the legal provision that prevents revision.
Circumstances in which UC might or might not be claimed
• In the Annex to Circular A7/2018 you include examples of a claimant making a claim for new style ESA(c) or JSA(c) together with a claim for UC. Do you agree that the claimant could opt to claim JSA(c) or ESA(c) as a stand-alone benefit without also claiming UC, including cases where the claimant has existing awards of HB and/or Tax Credits? Do you also agree that in such a case, HB and/or Tax Credits would continue to be paid alongside new style ESA(c)/JSA(c)?
• Do you agree that a claimant who starts work while currently receiving HB (with or without Tax Credits) can remain on in-work HB if s/he so prefers, by simply not claiming UC?
• Do you agree that in no circumstances is it compulsory for a person to claim UC? In all cases it is the claimant’s personal choice whether or not s/he claims UC: is that correct? The only element of practical compulsion is that a person generally cannot make a new claim for any other means tested benefit, therefore there often is not much of a viable choice. But in cases where existing benefits (adjusted according to the new circumstances where appropriate) would continue, it is perfectly proper for the claimant to elect to remain on those benefits without claiming UC. Do you agree?
I see they’ve already had to reissue it -
Revision 20 September 2018: We apologise for any inconvenience caused but this circular is re-issued with additional guidance regarding ‘New HB claims: Specified and temporary accommodation cases’ at paragraph 12. Please destroy any copies of the version previously issued on 14 September 2018.