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When is an explicit request for backdating UC not a matter for a formal decision? When its Universal Credit!

Andyp5 Citizens Advice Bridport & District
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As per the usual norm when we help client or client’s request backdating, no formal decision made just a no can do note on the journal.

Would really appreciate thoughts on the following.

Client requests backdating on 2nd UC claim as 1st claim with abusive partner closed as he did not attend 1st appointment (client fled and made second claim as lone parent) - response on her journal below from DWP.

‘Hi Neil, unfortunately we cant look at that period as it is now a closed contract and we couldn’t calculate a payment for that period due to the joint claim and your ex not having taken any steps to complete the action on his claim. the one ting you could make use of is a new claim advance which would give you an amount of money to get you by, if you would like to make use of this please call us on 0800 328 5644’.

Client comes to us we advise following - :

See extract from the request on the journal for backdating

‘Please would you backdate my new claim for UC one month on the following basis Regulation 26 (3) (f) (i) (ii) (iii) UC (C&P) Regulations 2013 i.e. ‘where (i) the Secretary of State decides not to award universal credit to members of a couple jointly because one of the couple does not meet the basic condition in section 4(1)(e) of the 2012 Act; (ii) they cease to be a couple; and (iii) the person who did meet the basic condition in section 4 (1) (e) makes a further claim;’

Response form DWP suggesting 1st claim treated as a defective claim

‘Hi Neil I’ve had a look and unfortunately in your case we are unable to backdate your claim ourselves, our guidelines and policy account for backdating on a joint claim when the award of Universal Credit is disallowed or terminated because one member of the couple does not accept their claimant commitment, our issue now is that nothing was done by your ex partner so there were never any commitments to consider so the claim wasn’t closed on a failure to accept commitments so we have no grounds to reconsider a backdated payment’.

Regards Amber

Carolyn McA
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When I queried how to go about requesting backdating for Help to Claim cases, as there’s only the option of leaving a not for the work coach, not for a decision maker, I was told that the work coaches should pass a request of this sort made through the journal to a decision maker. It might be worth asking explicitly for this to be done, i.e. “You say it’s a decision you can’t make; please arrange for it to be looked at as soon as possible by a decision maker who *is* able backdate the claim”.

Andyp5 Citizens Advice Bridport & District
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Carolyn McA - 16 May 2019 01:51 PM

When I queried how to go about requesting backdating for Help to Claim cases, as there’s only the option of leaving a not for the work coach, not for a decision maker, I was told that the work coaches should pass a request of this sort made through the journal to a decision maker. It might be worth asking explicitly for this to be done, i.e. “You say it’s a decision you can’t make; please arrange for it to be looked at as soon as possible by a decision maker who *is* able backdate the claim”.

Thanks for the advice Carolyn!

If anyone has any further thoughts would be really grateful!

Charles
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About the substance of your backdating request:

I know CPAG say that DWP closing a claim for failing to arrange/attend an ID interview is unlawful, but I’ve always wondered about this. I think it could come within reg 8(3) of the C&P Regs.

Even if CPAG are correct that the claim cannot simply be closed in these circs, I think you’ll still be stuck. Your argument relies on a decision being made to refuse the first claim for UC due to not accepting the claimant commitment, and that definitely didn’t happen here. You would have to first ‘encourage’ DWP to make a decision refusing the original UC claim (due to the claimant not accepting the claimant commitment), and only then request a backdate on the new claim.

Andyp5 Citizens Advice Bridport & District
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Charles - 16 May 2019 04:38 PM

About the substance of your backdating request:

I know CPAG say that DWP closing a claim for failing to arrange/attend an ID interview is unlawful, but I’ve always wondered about this. I think it could come within reg 8(3) of the C&P Regs.

Even if CPAG are correct that the claim cannot simply be closed in these circs, I think you’ll still be stuck. Your argument relies on a decision being made to refuse the first claim for UC due to not accepting the claimant commitment, and that definitely didn’t happen here. You would have to first ‘encourage’ DWP to make a decision refusing the original UC claim (due to the claimant not accepting the claimant commitment), and only then request a backdate on the new claim.

Thanks Charles! Felt stuck from the off!

It appears no decision was made on the first claim, or any apparent attempts by DWP to allow any defects in claim to be remedied by claimant. So in effect client is denied a potential ground for backdating i.e. because of the absence of a decision.

Clutching at straws but is there an argument for requesting a consolatory payment on the basis of maladministration?

 

Mr Finch
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Surely ‘closing a claim’ is making a decision not to award it, however the DWP describes it internally. And I certainly don’t agree with them that ‘one of the couple does not meet the basic condition in section 4(1)(e)’  requires there to be a commitment to accept. It’s a basic condition: if you don’t turn up to your interview to consider the commitment, you don’t meet the condition. They’ve reworded it into ‘one member of the couple does not accept their claimant commitment’, but that’s not what 4(1)(e) says.

Charles
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Mr Finch - 17 May 2019 01:46 PM

Surely ‘closing a claim’ is making a decision not to award it, however the DWP describes it internally.

I agree that DWP’s description is irrelevant. However, my thinking was that this may come within reg 8(3) of the C&P Regs (see para 2(3)(a) of Schedule 2), in which case it is a defective claim, which does not need a decision.

(Claimants in this position who are told to make and attend an ID appt, and do so, would then be relying on reg 8(6).)

And I certainly don’t agree with them that ‘one of the couple does not meet the basic condition in section 4(1)(e)’  requires there to be a commitment to accept. It’s a basic condition: if you don’t turn up to your interview to consider the commitment, you don’t meet the condition. They’ve reworded it into ‘one member of the couple does not accept their claimant commitment’, but that’s not what 4(1)(e) says.

I think they are suggesting the claim was never a valid claim, because ID was never verified, and therefore there was no commitment to accept.

Andyp5 Citizens Advice Bridport & District
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Mr Finch - 17 May 2019 01:46 PM

Surely ‘closing a claim’ is making a decision not to award it, however the DWP describes it internally. And I certainly don’t agree with them that ‘one of the couple does not meet the basic condition in section 4(1)(e)’  requires there to be a commitment to accept. It’s a basic condition: if you don’t turn up to your interview to consider the commitment, you don’t meet the condition. They’ve reworded it into ‘one member of the couple does not accept their claimant commitment’, but that’s not what 4(1)(e) says.

The reality is even murkier! But then its UC, so murk goes with the territory, that much can be relied upon when it comes to UC!

Client originally claimed UC with her ex partner 17th of the specific month (assessment period 17th - 16th and payment date 23rd). Client attended an appointment on the 9th of the initial assessment period at jobcentre having verified her ID on line, for her claimant commitment (Daughter is months old, so at this stage client not subject to Work-related requirements). Her then Partner had not verified his ID or accepted a claimant commitment. That much is confirmed on her smart phone (erm hold that thought when you read further below).

Then client notifies DWP that she had left her abusive partner on 20th i.e. in a new assessment period and (re)claimed on UC 21st having fled to a refuge (specified accommodation), refuge worker had already helped client claim HB for her housing costs.

However, there was no trace of her previous UC account, it would appear that account was deleted etc etc. The fact her subsequent claim was made on a different date from the assessment period on the journal suggests i am guessing the initial claim is registered in a shadow version of any online UC account only accessible to the DWP internally. But don’t know at this juncture.

Andyp5 Citizens Advice Bridport & District
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Charles - 17 May 2019 02:03 PM
Mr Finch - 17 May 2019 01:46 PM

Surely ‘closing a claim’ is making a decision not to award it, however the DWP describes it internally.

I agree that DWP’s description is irrelevant. However, my thinking was that this may come within reg 8(3) of the C&P Regs (see para 2(3)(a) of Schedule 2), in which case it is a defective claim, which does not need a decision.

(Claimants in this position who are told to make and attend an ID appt, and do so, would then be relying on reg 8(6).)

And I certainly don’t agree with them that ‘one of the couple does not meet the basic condition in section 4(1)(e)’  requires there to be a commitment to accept. It’s a basic condition: if you don’t turn up to your interview to consider the commitment, you don’t meet the condition. They’ve reworded it into ‘one member of the couple does not accept their claimant commitment’, but that’s not what 4(1)(e) says.

I think they are suggesting the claim was never a valid claim, because ID was never verified, and therefore there was no commitment to accept.

Charles, Mr Finch and Carolyn thanks for taking the time and research re: all the above contributions/help its all a learning curve for all of us etc etc.

Just for completeness client told us that she actually explained to a WC during her appointment on the 9th in the initial interview in the first assessment period. Her plight i.e. domestic abuse and ex Partner’s unwillingness to ring up for an appointment to attend jobcentre.

Andyp5 Citizens Advice Bridport & District
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Long long story and a big thank you to Sarah and Matt at the Public Law Project!

DWP legal dept response to the pre-action letter re JR etc etc that ‘claim to be revised and backdated’ etc etc, and, even a formal decision letter to that effect on the Journal (collectors item).

Dan Manville
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Charles linked to a CPAG article back in May but the link no longer works. I’ve got a similar situation; can anyone help me with the right link?

Thanks

Andyp5 Citizens Advice Bridport & District
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Dan Manville - 13 August 2019 03:29 PM

Charles linked to a CPAG article back in May but the link no longer works. I’ve got a similar situation; can anyone help me with the right link?

Thanks

Try these Dan

https://cpag.org.uk/welfare-rights/resources/article/defective-claims-revisited

https://cpag.org.uk/welfare-rights/resources/article/universal-credit-defective-claims-and-withdrawals

Charles
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Here’s an updated link to the article I linked to above:
https://cpag.org.uk/welfare-rights/resources/article/‘closing’-universal-credit-claims

Ros
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There’s also a CPAG pro-forma judicial review pre-action letter that sets out the legal basis for a challenge to a UC claim being ‘closed’ -

https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/claim-closure-uc