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UC and Carer Element Run On After Death

 

McLeod
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Welfare Rights Officer, Advice Shop West Lothian

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I would be grateful for any clarification or advice and apologies for the rather long post….

I have a client whose husband passed away and she was previously on his Pension Credit claim.  She was getting CA for him and this ran on for the normal 8 weeks period following his death.  However as she is under pension age and we are now UC, my client had to claim Universal Credit.  They processed her UC claim and reduced it by her CA income however they never awarded the carers element.

Normally with other benefits the award of CA (and the accepted 8 week run on) would be enough to allow the carers premium to be included in the calculation.  The UC legislation itself states in Reg 30. …….for the Purpose of Part 1 of the Act and these Regulations, a person has regular and substantial caring responsibilities for a severely disabled person if they satisfy the conditions for entitlement to carers allowance.

This has been queried with UC and the most recent response from a UC case Manager was ‘I have raised this with our quality team and they have advised according to decision makers guidance you will not be entitled to carers element for the period in question’.

Assuming this is DM guidance F6027 which advises
Run on after death of disabled person
F6027 Where
1. a claimant, who is providing regular and substantial care, is awarded a carer element and
2. the severely disabled person, in respect of whom that care is provided, dies

the carer element award will continue in payment until the end of the second assessment period following the assessment period in which the death occured1.
1 UC Regs, reg 37

However it seems that because my client is no longer providing regular and substantial care and did not have a UC claim already in place prior to her husband’s death, she may not be allowed to have this element included in her UC even though she is being paid CA.

Has anyone else had this issue or has any other thoughts? She is happy for me to query this further with UC and ask for a written response to try and determine exactly their decision thoughts but thought I’d add it here first in case anyone has been in the same situation.

Thank you for any help :-)

     
Cordelia
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Welfare Rights Officer, Wrexham Council Welfare Rights Team, Wrexham

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I haven’t had a client in this situation myself, but for what it’s worth I think you have an arguable case.

There is no requirement for the deceased person to have been part of the Universal Credit claim.  The regulations state:

Run-on after a death

37.  In calculating the maximum amount of an award where any of the following persons has died—
(a)in the case of a joint award, one member of the couple;
.(b)a child or qualifying young person for whom a claimant was responsible; or
.(c)in the case of a claimant who had regular and substantial caring responsibilities for a severely disabled person, that person,.
the award is to continue to be calculated as if the person had not died for the assessment period in which the death occurs and the following two assessment periods.

The husband is “that person” - not a part of the UC household but someone who the client had caring responsibilities for.

UC obviously haven’t imagined a situation where the carer wasn’t already on UC at the point the death occurred, so are seeing it as a run on of an existing entitlement.

I would argue that if the person passed away on e.g. 20th October, and the UC claim was made on 21st October, then the two assessment periods after the death are 21st October to 20th November, and 21st November to 20th December.  I would read the regs as saying that UC should be calculated as if the cared for person continues to exist, rather than that the UC award continues to exist. 

The UC computer might struggle with this as a concept, but I’m sure it could be overridden by a case manager or a tribunal judge…

If your client is happy for you to challenge the decision along those lines I can’t see any reason not to.

     
Carlo
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Greenfields Community Housing, Benefits Advice Service

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In August this year I had 3 cases in the space of 2 weeks exactly the same as yours. I was chasing and chasing and the best I got was this from “the policy team” -

“We would not pay carers element run-on as the claimant was never entitled to the carers element of UC as the caring responsibility ended before the UC claim. Any payment of carers allowance run-on should be taken into account”

It results in a spectacularly emotional nightmare for my tenants - I wish I could say it’ll work out quickly…......

     
Jon (CHDCA)
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Welfare Benefits, Craven CAB, N Yorks

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Similar, previously:

https://www.rightsnet.org.uk/forums/viewthread/9089

      [ Edited: 31 Oct 2018 at 11:15 pm by Jon (CHDCA) ]
KMJones
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I’m in agreement with @cordelia with regard to the reading of the regulations.  It seems unlikely that there was an intention to deprive carers of the 2 month run-on simply because they naturally migrate onto UC at the time of bereavement, rather than before then.

@mcleod and @carlo - are you able to submit your cases into our Early Warning System?  This is exactly the type of issue that we want to collate evidence on, to enable us to take action through policy and campaigning routes, alongside any legal challenges.  It’s a simple online form on our website: http://www.cpag.org.uk/early-warning-system

CPAG’s Upper Tribunal Assistance Project could help too, if the First-Tier isn’t helpful: http://www.cpag.org.uk/upper-tribunal-assistance-project

     
Carlo
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@KMJones.
I’ve sent the case scenario to the EWS - first time I’ve done this so let me know if its done correctly.

     
KMJones
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Thank you Carlo!

Regulation 30(1) of the Universal Credit Regulations 2013 provides that “a person has regular and substantial caring responsibilities for a severely disabled person if they satisfy the conditions for entitlement to carer’s allowance”.  This regulation effectively passports Carer’s Allowance claimants to the Carer’s Element of Universal Credit and is well worth including in any challenge or appeal.

As I said in my email, please do come back to us with the outcome as we may be able to assist further.

     
KMJones
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Do let CPAG know about any other cases like this.  We are looking at a legal challenge for the gap in bereavement protection for UC claimants naturally migrating due to a death in a joint/dependant legacy benefit claim.

As above, we’ve had a few cases where carer’s element hasn’t been awarded whilst Carer’s Allowance is running on.
Regulation 30(1) of the Universal Credit Regulations 2013 passports a claimant to the carer element of UC as long as they satisfy the conditions for Carer’s Allowance.  Claimants receiving the CA run-on after death should receive the carer element of UC by virtue of that regulation.

Regarding other bereavement protection:
1. Under legacy benefits, Regulation 13ZA of the Housing Benefit Regulations 2006, allows for HB entitlement to remain unchanged by the death for up to 12 months following the death.
2. Regulation 37 of the Universal Credit Regulations 2013 permits UC entitlement to continue at the same rate as entitlement in the assessment period prior to death, in the assessment period in which the death occurs and in the following 2 assessment periods
3. Claimants who are starting Universal Credit claims immediately on the death of a partner (e.g. because their joint Pension Credit or ESA claim has been terminated) are not benefiting from either of these protections.  The Universal Credit protection is not available because there was no UC entitlement in the preceding assessment period.

If anyone else has cases where this issue is arising, please submit in .(JavaScript must be enabled to view this email address) and I’ll forward onto the legal team, as appropriate.

     
KMJones
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CPAG’s JR project is just getting off the ground. Our JR worker is working closely with our solicitor to draft template JR letters for benefits advisers to use.

We now have a template letter ready to challenge the failure to include a carer element when a UC claimant is in receipt of Carer’s Allowance. 

We need to monitor the amount of downloads to meet our funding targets, so if you’d like a copy of the template (before it finds a place on our website), please complete an EWS form [https://childpovertyactiongroup.wufoo.com/forms/m1vc0zeg1sr9zgh/]
That way we can keep tracking the problem and I’ll get a template letter to you straight away.

Of if you’re short on time, email me directly at .(JavaScript must be enabled to view this email address)

We’re working on a follow up with regard to the housing costs protection for UC claimants starting their claim on becoming bereaved.

     
McLeod
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Welfare Rights Officer, Advice Shop West Lothian

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As an update I now have another case whereby UC are not including the Carers element even though the person is in receipt of the benefit as part of the 8 week run on. 

After quoting all the relevant guidance and rules, the response has been that because she ticked the box when she made her application to say she was not claiming for a person (as that person had passed away) she is not entitled to the benefit. 

When she queried this on her Journal to advise the reason was because he had passed away and she had explained this at her claimant commitment meeting, the response was that she had to be caring for a person.

It just seems a blatant disregard of the basic UC rule ‘a person is in receipt of CA and therefore entitled to the CA element’.

It also is terrible treatment of a person at an already upsetting time and is leaving them in considerable financial hardship.

I am meeting with her next week to see this response and then take it further and discuss the CPAG challenge letter I was sent - has anyone had any success with these cases yet from Universal Credit?  Taken it to any MSPs to challenge?

Thanks a lot for any help

     
Jess Strode
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CPAG have seen this come up a number of times, and have now raised it at a policy level with DWP. However advisers may still want to challenge it on an individual basis and are invited to use the template we have prepared on the subject, available here: http://www.cpag.org.uk/content/judicial-review-pre-action-letters.

We have prepared (and are continuing to prepare) judicial review pre-action protocol letter templates for advisers to use on a variety of subjects including the imposition of the bedroom tax on a new claim to UC when someone claims as a result of bereavement.

We would be very grateful if you let us know if you use any of the letters, and how the DWP respond (as we can edit the templates to address issues raised by the DWP).

Please feel contact the CPAG Judicial Review Project at .(JavaScript must be enabled to view this email address) if you have any questions about judicial review, or using the letters.

     
Jess Strode
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Good news!

In response to CPAG’s judicial review pre-action protocol template letter (as used by an advice worker) DWP have accepted that the UC carer element should be awarded when a new claim is made following the death of a person the claimant was caring for and who is receiving the carers allowance run-on. They have also agreed to review their guidance on this issue.

CPAG will amend the above template to reference the DWP’s legal advice, and would suggest continuing to send it for individual clients to encourage DWP to ‘review their guidance’ in a timely manner, but also requesting a mandatory reconsideration and referencing the DWP’s legal position, as attached.

Note, it is not unusual for DWP to reply ‘judicial review is not appropriate’...  we’re ok with that as long as they change the decision being challenged. Everyone wants to resolve issues without going to court!

For ease of reference, the template is available here http://www.cpag.org.uk/content/judicial-review-pre-action-letters

Please let me know if you use it and what response you receive .(JavaScript must be enabled to view this email address).

     

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Daphne
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Great result - and the JR letters are a fantastic resource :)