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Backdating missed UC elemnts : official error

benefitsadviser
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Sunderland West Advice Project

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Joined: 22 June 2010

I have a client who claimed CA on 26/4/2019
He claimed UC for help with rent
His APs since then have not included the carers element even though the award letters state carers allowance as income for those APs. CA reducing pound for pound, but no extra £160 a month to compensate.

I picked up on this and told me client to point it out on his journal, and get those elements added and backdated.

DWP have refused to backdate, stating he should have informed them of this earlier! The award letter states carers allowance was income yet they are blaming my client for not informing them he was entitled to a carers element??

We are officially living in a simulation.

Anyway, the DWP response is “we don’t care if you take us to a tribunal, we aren’t backdating”. Oh, and they are refusing to do a mandatory reconsideration in writing as usual….. Ill deal with that separately

Any idea what law DWP are using here? It seems like an oversight that can be revised and backdated with no problem but apparently there seems to be one….
Thoughts??

csmk
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Macmillan Benefits Advice Service/Citizens Advice Dudley Borough

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The UC, PIP, JSA and ESA (Decisions and Appeals) Regs 2013 Schedule 1 Part 4 Reg 31(2)(a) should mean carer element payable from first AP where entitlement arose.

Although I’m not sure if informing them ‘late’ would affect this, I think on Part 3 Reg 21 might prevent backdating.

HB Anorak pointed this out on this thread: https://www.rightsnet.org.uk/forums/viewthread/14133/ and it’s helped a lot of clients I’ve seen since then!

[ Edited: 12 Jul 2019 at 11:32 am by csmk ]
HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Attempting to find a legal basis for some of the things DWP do is a fool’s errand - they haven’t got a clue.

I think there are three possible explanations for what has happened here and we need to fit them into the 2013 D&A Regs.  You say (I think) that CA was claimed before or at the same time as UC so the award of UC is not a change of circumstance for UC purposes - it is something that applies from Day 1 of the UC award.  If I am right about that, here are the possibilities:

- UC was first awarded before CA was decided and when the CA finally got paid, they revised their decision under Reg 12 (award of another benefit).  They got it wrong - CA affects both income and maximum amount, they have only dealt with the income.  The decision should therefore be further revised on the official error ground under Reg 9(a). 

Alternatively:

- CA was already in payment at the time of the UC decision and it was taken into account as income without the corresponding element in the maximum amount.  Again, they got it wrong.  This too should be revised on the official error ground under Reg 9(a)

Or another alternative:

- CA was already in payment at the time of the UC decision, but UC did not know this.  When they found out, they revised (to the claimant’s disadvantage) under Reg 9(b) (ignorance of the facts).  They got it wrong - they should have included the element and the revision would still have been disadvantageous, just not as disadvantageous as what they have done.  Time limit would not have been an issue.  Therefore the decision should now be further revised on the official error ground Reg 9(a).

In either case, the claimant also has the right to apply for revision under the additional and alternative ground of Reg 5(b), and then has the right to appeal if the application is rejected.

[Edited to refine a bit]

[ Edited: 12 Jul 2019 at 11:51 am by HB Anorak ]
Jacky Everard
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Hastings Advice & Representation Centre

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Apart from the backdating issue did your client report “regular and substantial” caring responsibilities when he made his initial UC application did he tell his work coach about his caring responsibilities..

I only mention this because it is not a requirement within UC to receive Carers Allowance to get the carer element -see UC Reg 30(2) of Advice for Decision Makers Chapter F6, para F6021.

If he had made UC aware of his “regular and substantial” caring responsibilities before payment of Carers Allowance started it may be worth also mentioning this is the recon/appeal to try to get the carer element backdated even further than when Carers Allowance began! Even better if there was something in his claimant commitment or on his UC account about caring responsibilities determining his his work requirements.

I assume he is not getting LCWRA, because if he is single he can’t get UC LCWRA and carer element together.