Waiting for ESA MR, claims UC - then IRESA put back in payment but HB refused - opinions needed

A colleague has emailed me to this effect:

I have a client who was on ESA/HB
She failed her medical and put in a MR
She then claimed an online claim to UC as was struggling financially
She was given an appointment at Jobcentre to verify her details etc
The day before her appt the MR was accepted and ESA reinstated
She attended her appt at jobcentre and stated she did not want to continue with her claim as she was back on ESA-UC was closed
She then tried to claim HB and they will not budge and keep saying her only option is to claim housing costs in UC
Is this correct or can we challenge on grounds it was never a live UC claim

[Today, we also find that IRESA has gone back in to payment but HB will not pay and rent arrears are mounting]

I have given the opinion that it was a live UC claim, that making the claim brought legacy benefits to an end and there is no way back, also that IRESA should not be in payment and that HB are correct.

I’m suggesting that a new UC claim be made at once to stop arrears spiralling, and a complaint be made that UC should have told the claimant the consequences of withdrawing the claim, and that IRESA should not have been put back in to payment.

Any different opinions please?

I think you have that right.  I know this still happens a lot.  The crucial question is whether the UC claim got as far as the point where HB “terminates” under UC (TP) Reg 8.  That requires DWP to have “determined” that the conditions in s4(1)(a) to (d) have been satisfied.  Those include not too old, not too young, not a student and present/habitually resident.  There is one rather mysterious UT decision from last year in which Edward Jacobs (in one of his impatient and grumpy moods) says he heard evidence from HMRC that these conditions had been satisfied at a very early stage in the UC claim process, but he doesn’t go into any detail about how that happened.  The key legal point from that decision is that withdrawing the UC claim, as your client has done, does not retrospectively resurrect HB, IS or Tax Credit if the s4(1)(a) to (d) stage had already been reached.

I think the age conditions are probably satisfied instantly by machine: if you say you are 15 or 100, the computer will not allow you to go any further.  But student status and HRT will sometimes require further consideration.  Perhaps if the claimant answers No to student, British to nationality and Yes to question about recent residence in UK or Ireland, the other conditions are also satisfied by machine (subject only to ID confirming British nationality) and no follow-up enquiry is generated.

If your client’s UC claim got beyond the s4(1)(a) to (d) stage then HB correctly terminated and there is no way back.

As far as ESA(ir) is concerned I think it is even more straightforward.  Both ESA(ir) and JSA(ib) are abolished if the person makes a UC claim, irrespective of age, student and residence status.  The only slight question is whether proof of ID is required to establish a valid claim at all.  But it seems your client did prove her ID, so really that should have put the kibosh on ESA(ir) and it should never have been reinstated.

There is nothing to lose from challenging the HB decision - we need greater clarity on how and when DWP satisfies itself that s4(1)(c) and (d) are met.  That’s the only way rent is going to be paid for the missing period, but perhaps back it up with a complaint seeking compensation if the HB appeal fails on the basis that DWP should have advised her better.  Should definitely make new UC claim now though, assuming not on SDP.  The longer she doesn’t claim UC, the longer the period at risk if the HB appeal fails.

Another colleague had added: [our local authority] has reopened HB claims terminated by ESA decisions, where the ESA has been reinstated as a continuous entitlement. This is reopening an existing HB claim rather than taking a new claim.

Remembering that the customer has one calendar month or as reasonably long as is necessary up to a maximum of 13 months I think such a decision is well founded. - not least because UC claim has been superseded by ESA.

In effect the HB stop notice is also invalidated by the appeal outcome and [the LA has done this] in agreement with Jobcentre Plus.

Thoughts? I’m thinking that even if HB can be retrieved this way, the IRESA is still incorrectly restored and it doesn’t supersede UC - ?

My view is that the HB terminating decision strictly speaking should not be revised in such cases, the mess is all of DWP’s own making and it is not the Council’s problem.  Understandably, when faced with a distraught claimant being shoved from pillar to post with everyone refusing to pay his/her rent, many local authorities have opted for the pragmatic solution and have reinstated the HB award by way of revision.  If external auditors start asking awkward questions they can justify it by saying “well there cannot have been a UC claim because look - ESA(ir) is still being paid, that would be impossible if they had claimed UC.  There must be some mistake”.  That ought to protect the subsidy claim.

This has just come up for us in Bristol. As far as I can see ( please do correct me if I am wrong) paras 4 and 5 of Reg 13 of the UC(TP) Regs 2014 applies. Reg 13 sets out what are the effects of appeals regarding legacy benefits were a UC claim has been made and a decision has been made that the person is entitled to UC and this ends IS, HB or TC (rather puzzlingly to me no mention of irESA) by operation of Reg 8 of the TP regs. Paras 4 and 5 are written in vague permissive language to the effect that the S of S should consider revising the UC decision to give effect to the decision of the tribunal or “any finding of fact” of a tribunal. This appears to give the DWP the power to revise the original decision that the person is entitled to UC and therefore Reg 8 is disapplied from the start (depending on how the DWP decides in a particular case).

If the DWP do do this as they did with a case one of my colleagues had then the UC claim goes away like magic. This happened with my colleague’s case. As it is the S of S that has this duty to consider the LA deciding on what to do with a new HB claim would I assume need to hang on the tails of whatever course of action the DWP decide to take. Possibly (again assuming I am correct in waht I am writing) the LA’s do not know this thus the confusion that people have been coming up against when claiming HB in the wake of the DWP decision to remove the decision that the person is entitled to UC.

I think what Reg 13 contemplates is that the UC award will inherit the effect of the Tribunal decision: UC will be assessed in a more advantageous way if the matter decided by the Tribunal in relation to the legacy benefit also affects UC.  Reason it doesn’t refer to ESA is that ESA (and JSA) don’t end under Reg 8 when you claim UC, they are abolished under the local commencement order. The equivalent rule for ESA and JSA is in Article 24 of the Number 9 Order.

See also Reg 14 which deals with the reverse situation: where an outstanding UC appeal would have implications for a subsequent legacy benefit award, the decision on the legacy benefit can be revised in the light of the UC appeal.  That used to happen in live service, where a return to legacy wasn’t at all unusual.  Not so easy to achieve a situation like that now - limited to SDP cases in supported/temporary accommodation and mixed age couples until May.

If the Reg 14/Article 24 revision did remove the UC award I don;t see how it would get you any further forward because there was still a UC claim: revision of the UC awarding decision cannot make it as if there wasn’t a claim, indeed there is ony a decision to revise in the first place precisely because there was a claim.  That means that ESA/JSA would still be abolished and in most cases HB/IS/Tax Credits would still terminate.

Proper answer to this issue is that DWP Should Not Do It

We have an ESA SDP tenant who moved into our area in December and tried to claim HB. They told her she needed to claim UC. She seems to have claimed UC on 12 December. I spoke to her today (for the first time) and she told me they (presumably Jobcentre) have helped her to end the UC claim and she is back on ESA again. I don’t have any evidence yet that this is true, but if it is, it seems to me that she would be able to get HB now because she is receiving an SDP (even if she shouldn’t be).

But this got me thinking about whether there is any way the DWP could have revised its original decision to accept the UC claim, and hence continue the old ESA claim long enough to get her within a month of 16 January so that she could have ended UC and made a new ESA claim? Or something. I am getting confused.

Our escalation of one case has produced exactly this result (back to legacy benefits/pretend UC didn’t happen).

Utter shambles.

I’ve just heard back from our HB section. Apparently the DWP made a decision (after 16 January) that the UC claim ended on 11 January - which happens to be just within a month of her last entitlement to an SDP. They appear to have then made a decision that the ESA claim just continued as if UC never happened. This raises many questions, but my client is not going to request a mandatory reconsideration. And as she’s getting an SDP we’re going to allow a new HB claim.

Yes it’s a shambles, but it’s a righteous shambles.

HB Anorak:
Your point would have been my first take on the words of Reg 13 however this is not explicit and the wording “to revise the UC decision” does seem to be capable of meaning that the DWP can revise so that the person is not entitled to UC so therefore is still entitled legacy benefits just as much as to say it can revise to include the LCWRA element. The legislation is not clear on the point. It is the only possible legal basis ( I agree an extremely shaky legal basis) I can see for the practice that does seem to be growing of the DWP doing this.

Mike Hughes and Timothy Seaside:
Yes a shambles not sure how righteous though.