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DWP have incorrect earning details. Help!

benefitsadviser
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Sunderland West Advice Project

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I have a client who earned £5000 in a 5 month period, at £1000 a month.
Her boss reported to HMRC that she was paid that in the tax year, however it was processed that she got all of the money in april by mistake. UC has stopped, and also applies a couple of months ahead due to surplus earnings rule.
She has called them, uploaded bank statements, wage slips and asked for an MR.
Get this : DWP staff ACCEPT she never got the money in 1 AP but are saying there is nothing they can do as they have to follow what was reported. They also haven’t returned her mandatory reconsideration as not revised even though they refuse to change their mind.
I am new to the procedures for UC and I need this sorting : they are in breach of Reg54 (1) that states actual earnings must be assessed to calculate entitlement.
Can anyone give me an address or email to escalate this. as usual DWP are saying there is no case managers or supervisors to talk to when she requests to take it further. They simply don’t give a monkeys

Thanks

NeverSayNo
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Welfare rights department - Northumbria Healthcare NHS Trust

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Hi benefitsadviser

In my experience the DWP are using UC regs 2013 reg 61 - which basically says they use information on earnings reported from HMRC. This would mean they only accept that she got it all paid in one month as HMRC reported this (possibly relying on whatever her employer did).

Reg 61 (3) does allow the DWP not to use HMRC information if they think it is wrong (“sufficiently accurate or timely”). This seems to be a power (may) rather than a duty not to use the information from HMRC.

Reg 54 is more helpful as it states how earnings are calculated ie based on actual amounts received in the period.

You could have a look at SSWP v RW (UC) [2017] UKUT 347 (AAC) (see link below) seems ti suggest that reg 54 takes precedence over reg 61:

https://assets.publishing.service.gov.uk/media/59ba6554e5274a561339d3a3/CUC_0166_2017-00.pdf

[ Edited: 22 May 2019 at 12:07 pm by NeverSayNo ]
Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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Timothy Seaside
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Housing Services, Arun District Council

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I’d add that both Reg 61(3)(a), in relation to the employment, and (b)(ii), in relation to the APs, can apply.

If the DWP agrees that the RTI is incorrect (based on the evidence your client has provided), it’s arguably unlawful not to use the power (because it would be Wednesbury unreasonable, and would be deliberately using incorrect information in the calculation). In the case you’re describing, I would argue that either (a) or (b)(ii) could apply. But as Never Say No says, if the decision maker doesn’t realise that Reg 61 was replaced in 2014, then they won’t realise they have a power to ignore incorrect RTI data. Reg 61(3) currently reads:-

(3) The Secretary of State may determine that paragraph (2) [i.e. use RTI, assume it’s correct] does not apply–
(a) in respect of a particular employment, where the Secretary of State considers that the information from the employer is unlikely to be sufficiently accurate or timely; or
(b) in respect of a particular assessment period where–
(i) no information is received from HMRC and the Secretary of State considers that this is likely to be because of a failure to report information (which includes the failure of a computer system operated by HMRC, the employer or any other person); or
(ii) the Secretary of State considers that the information received from HMRC is incorrect, or fails to reflect the definition of employed earnings in regulation 55, in some material respect.

Charles
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I agree that DWP would have to use the power in 61(3), but there could still be an issue that when earnings are reported late, DWP can choose whether to include it earlier and ignore the RTI, or disregard it earlier and use the RTI (reg 61(5)).

Regardless, if you want to appeal the following applies:

When DWP use RTI, no decision is necessary, so if you want to appeal, you have to do one of two things:

  1. Request a supersession of the original decision awarding UC. If/when that is refused, you would have to MR that, and only then appeal.

  2. Request a decision be made under reg 41(3) of the D&A Regs (which should be provided within 14 days), MR the decision, and then appeal.

Daphne
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Also CPAG have some useful JR pre-action template letters that you might find useful under Disputed earnings

Elliot Kent
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Shelter

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Couldn’t it potentially benefit your client to have one massive payment in one AP and then no payments at all in 4 APs?

Charles
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Accountant, Haffner Hoff Ltd, Manchester

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That’s a good point. Even at the current higher work allowance of £503, the maximum loss of work allowances would be £503*4=£2012. Currently the surplus earnings rules ignore £2500. So she is better off this way.

Unless the earnings started before she claimed UC?