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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

“Living together”, determinations, decisions, MRs and appeals

 

Brian JB
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Advisor, Wirral Welfare Rights Unit, Birkenhead

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Not well titled but I just wanted opinions from a wider audience on this.

Caller has been on UC since 2016. She lives in the house of her ex-partner, who is father of one of her children. She is clear that this was explained at her initial UC claim.

Following intervention by DWP fraud, she has now received a letter saying that they have made a DETERMINATION that she and her ex-partner have been a couple since the start of her UC claim. The letter says that she has the right to ask for an MR of this DECISION, but she has no right of appeal “against this DETERMINATION”.

She has asked for MR of the determination

Additionally DWP have asked her to provide details of his income (earnings) and capital since 2016 within a month. She has been advised that her UC has been suspended following the DETERMINATION that they are a couple and requiring her to add the alleged partner to her UC claim.  The letter says that if she doesn’t “do this” by 1st June 2019, her Universal Credit claim will be closed.

Now, I can see where they are coming from in saying that it is a determination rather than a decision. There has been no decision as yet to revise or supersede existing decisions awarding UC. Being a member of a couple rather than a lone parent does not mean that she is not entitled to UC. There appears to be a right to suspend under Reg 44(2)(a)(ii) UC (Decisions and Appeals) Regs and to require information or evidence within a prescribed time limit under reg 45. If client fails to provide the information (quite apart from the alleged partner being added to the UC “claim”, which isn’t evidence or information to my mind), her entitlement to UC must be terminated (reg 47(2).

What I am concerned about is that if they decide not to change the determination, and then subsequently terminate entitlement under Reg 47, will the MR and possible appeal at that point simply be on the correct application of regs 44, 45 and 47, rather than the issue that was the subject of the determination that lead to suspension and termination of the award. 

     
Elliot Kent
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Brian JB - 09 May 2019 06:26 PM

What I am concerned about is that if they decide not to change the determination, and then subsequently terminate entitlement under Reg 47, will the MR and possible appeal at that point simply be on the correct application of regs 44, 45 and 47, rather than the issue that was the subject of the determination that lead to suspension and termination of the award.

No, partly because the request for information concerning the “partner” pre-supposes that the information has any relevance at all to the UC claim. The request would be incoherent if the “partner” was not a partner and therefore the Tribunal would necessarily need to engage with the question. On top of that, DWP would almost certainly want to impose an overpayment, and they couldn’t do that via the suspension/termination route. They would have to revise the original entitlement decision(s) which would mean engaging directly with the LTAHW question.

I think that expressing it as a determination at this stage is sensible, albeit I imagine very confusing for the claimant because - as you identify - simply having a partner does not really decide anything about entitlement. She might well have been underpaid if the “partner” has no income or capital.

     
Brian JB
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Advisor, Wirral Welfare Rights Unit, Birkenhead

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Thank you Elliot and apologies for the belated acknowledgement of your reply. I strongly suspect there will be an overpayment raised as you do, rather than simply terminating entitlement

     
Stainsby
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She needs to at least respond and tell them that she cannot provide evidence of his income because she simply does not have the evidence and at the same time continue to deny that they are a couple

This will provide a strong basis for any appeal against a purported suspension and termination decision should any such decision be made. She can raise the cohabiting determination in the course of that appeal because the determination must form part of the termination decision

If they come up with an overpayment decision, along with a termination decision (which must be based on a supersession in the normal way) the cohabitation determination will be a building block for those decisions

Appeals are against decisions and the appeal will be against any determination embodied in the decision

     
Brian JB
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Advisor, Wirral Welfare Rights Unit, Birkenhead

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Thank you for that response as well. I had advised her to see if the alleged partner was willing to provide the evidence and also join in on the UC claim, on a protested basis (i.e. both parties making it clear they did not agree with the course of action they were being made to take - any subsequent decision on the joint “claim” could be MR and appealed). Understandably, he refused, so client has advised UC about this and I agree, that should enable us to have some basis for arguing the ending of entitlement after suspension. I am interested to see whether, in the absence of alleged partner actually providing past earnings information, DWP obtain that information via HMRC or (as HB would have done in many cases) simply assumed an income that would be sufficiently high to result in “nil” entitlement

     
ClairemHodgson
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Brian JB - 17 May 2019 08:48 AM

I had advised her to see if the alleged partner was willing to provide the evidence and also join in on the UC claim, on a protested basis

Ii don’t understand why you would do that?  would merely give DWP ammunition, surely

It’s for DWP to prove their allegation in the first instance, not your client to disprove it

in any event, presumably the ex partner is as pissed off as your client, and will be able and willing to provide proof of where he DOES live by way of utility bills or whatever, and provide a statement as to his position/new partner if relevant/etc…

thus, even if DWP can show a prima facie case (and i’ve seen them try to prove living together whilst admitting the purported partner lived elsewhere!)  they will be wholly undermined