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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

UC or IS revision?

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JayKay
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Benefits adviser - Penwith Housing Association, Penzance

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I’m helping a client whose Carer’s Allowance and Income Support has just stopped.  Her son was getting PIP, but this was stopped on review.  She continued to get IS up to 29 Nov (8 weeks run on).  Her son’s PIP has now been reinstated and she notified Carer’s Allowance on 29 Oct to get her claim re-instated.  To date this has not been done.

IS say that she may or may not have to claim Universal Credit, as they say that CA needs to be in payment for IS to be payable - but decision makers interpret ‘in payment’ differently.  I’ve checked the regs and the wording is ‘both entitled to and in receipt of a CA’ (Schedule 1B para 4b), but you can also be entitled to it if you are regularly caring for a person who is in receipt the daily living component of PIP (para 4ai).

My gut feeling is that IS should be re-instated, but I am concerned about the wording ‘in receipt of’, as neither she or her son were ‘in receipt’ of the qualifying benefits for the period in question, but have subsequently become entitled following supersession and will be paid for that period.  I’ve had IS re-instated in previous similar cases without any problems but I am struggling to find the regulations that cover the situation.

I don’t want to advise the client to wait for CA to go back into payment and then get IS to revise their decision, if they are going to refuse to re-instate as she will lose out if she delays making a UC claim.

Brian JB
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The decision to end the award of IS was supersession on the basis of an anticipated change of circumstances - that your client would no longer fall within a prescribed category of person for IS. You rightly say that the re-award of PIP means that your client did, in fact, continue to fall within a prescribed category of person, so you should be able to revise the decision anticipating a relevant change of circumstances. If your application for revision is more than a month after the decision was made, I think you would have a very good case for extending the time for making the revision request

Rebecca Lough
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I’m having this very issue as DWP disagree that IS can be revised. DWP’s perspective that once IS ends, the only way to bring it back to life is by making a new claim.

They say ’ Regulation 3(7) only allows a ‘decision ... awarding a relevant benefit to be revised. It does not allow a decision terminating IS to be revised’.

I’m seeking advice to hone my argument at tribunal as I think surely the fact that PIP is later awarded back to original decision which ended CA, which ended IS isn’t moot.

HB Anorak
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This an “any grounds” application under Reg 3(1)(b).

It is true that the 1999 Regs have a lacuna in this situation, while the 2001 Regs contain a specific any time ground for revision when HB ends in analogous circumstances
But 3(1)(b) should still cover it.

Rebecca Lough
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In my case, it took a significant period of time for PIP to be re-awarded, and a claim for CA was made immediately and backdated fully.

Does that change the argument around IS in terms of Reg 3(1)(b)?

HB Anorak
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Only insofar as you have to make an out of time application under Reg 4 - and as someone commented further up the page, it is difficult to think of more compelling grounds for an extension of time.  Then there is a right of appeal even if they decline to entertain the revision application.

Michael Sh
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HB Anorak - 06 December 2019 11:44 AM

This an “any grounds” application under Reg 3(1)(b).

It is true that the 1999 Regs have a lacuna in this situation, while the 2001 Regs contain a specific any time ground for revision when HB ends in analogous circumstances
But 3(1)(b) should still cover it.


I have a very similar case. Please can you send me links to regs you describe (like the previous person I struggling to find these) ?

Paul_Treloar_AgeUK
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Michael Sh - 10 December 2019 03:13 PM

I have a very similar case. Please can you send me links to regs you describe (like the previous person I struggling to find these) ?

It’s this one you’re looking for I think.

Regulation 3 The Social Security and Child Support (Decisions and Appeals) Regulations 1999

Michael Sh
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Paul_Treloar_AgeUK - 10 December 2019 03:19 PM
Michael Sh - 10 December 2019 03:13 PM

I have a very similar case. Please can you send me links to regs you describe (like the previous person I struggling to find these) ?

It’s this one you’re looking for I think.

Regulation 3 The Social Security and Child Support (Decisions and Appeals) Regulations 1999

Thank you Paul. I must be having a bad day.

mycatismo
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Involved in trying to assist in a very similar case.
DWP have said that reg 3(1) in such a case (Non dep’s PIP reinstated) is specifically excluded from reg 3(1) by reg 3(9) (a), because the restoration of PIP is a relevant change of circumstances which pccurred after the termination of IS took place.
“(9) Paragraph (1) shall not apply in respect of–
(a) a relevant change of circumstances which occurred since the decision had effect
or, in the case of an advance award under regulation 13(d), 13A or13C(e) of the claims and payments regulations, since the decision was made,or where the Secretary of State or the Board or an officer of the Board has evidence or information which indicates that a relevant change of circumstances will occur;”

We were wondering whether there was any scope in reg 3(7) - DWP have said that it doesn’t apply because the decision that needs to be revised has to be an AWARD of benefit whereas this is a termination. (We were thinking that PIP was re-awarded rather than reinstated. Not sure that’s right though as is it the IS not the PIP they’re talking about?)

But are the DWP wrong about reg 3(9) meaning 3(1)(b) can’t apply where PIP and Carers Allowance are reinstated? If not, why not?

HB Anorak
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Yes, I think DWP are wrong about Reg 3(9)(a).  Reg 3(9)(a) is simply saying that you cannot revise a decision where there is nothing wrong with it as at the date from which it first had effect.  In this case, the reinstatement of PIP etc is not a change of circumstance from a later date - it has effect from the same date as the decision to be revised.  If there had been at least some IS entitlement without the SDP, Reg 3(7ZA) would have covered it.  Reg 3(7ZA) unfortunately does not seem to provide explicitly for a case where there was no entitlement to IS without an SDP, which leaves us with Reg 3(1) as the catch all ground for revision … but logically, if WP are right about Reg 3(9) it would clash horribly with Reg 3(7ZA).

The proper question DWP should ask themselves is:

“Now that the dust has settled and the non-dep’s PIP is reinstated, is there a period in which the original IS decision has effect and the non-dep still does not have entitlement to PIP?  If yes, we cannot revise the decision refusing IS because (i)there is nothing wrong with it and (ii) Reg 3(9)(a) applies for the avoidance of doubt.  If there is no such period, then clearly the IS decision is wrong from the outset and should be revised”.

PS, obviously just realised SDP not necessarily the issue here but fundamental eligibility for IS at all … same comments apply though.

[ Edited: 16 Dec 2019 at 11:14 am by HB Anorak ]
dizzymare
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This situation seems very commonplace at this time. I also have the same circumstances. Claimant lost PIP; my client lost her CA, and IS terminated. Claimant won appeal; CA reinstated back to date it was closed so no gaps, but IS refusing to revise decision to terminate IS. The mandatory recon notice states “however, prior to the introduction of UC, a new claim or a late revision of the of the original disallowance of IS would likely have been appropriate in respect of your circumstances .... However, following the introduction of UC, it is no longer appropriate to consider a new claim to a ‘legacy benefit”  I have not seen that there is anything to say that it is not possible to get a revision or supersession of a legacy benefit?

I have now lodged an appeal using the regs as indicated higher in this thread and have pointed out that this is not a new claim, but a revision of a previous decision. Really hoping we dont have to wait an eternity for an appeal and that someone will see sense before that date as my client is adamant that she will not claim UC.

Rebecca Lough
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As an update, we were successful at tribunal, however the DWP has asked for a statement of reasons so they can consider going to Upper Tribunal. The client has since become a pensioner so it’s a bit a moot point for us… however prepare for it to be the hill the DWP would like to die on!

HB Anorak
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DWP: you don’t really come here to hunt, do you?

dizzymare
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Rebecca Lough - 05 February 2020 11:14 AM

As an update, we were successful at tribunal, however the DWP has asked for a statement of reasons so they can consider going to Upper Tribunal. The client has since become a pensioner so it’s a bit a moot point for us… however prepare for it to be the hill the DWP would like to die on!

shocking! Im guessing that in the submission they were using similar argument? not possible to revise/make new claim? would be really interested to see the statement of reasons once it is done (redacted obviously) is it possible you might DM a copy? just interested to see arguments from DWP and how these were refuted. don’t worry if you cant do it. not a problem but it is reassuring to know that you were successful at appeal - well done (but so much unnecessary work)

Pete at CAB
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In broader terms could it be argued that the termination of the IS award was itself unlawful. If IS were aware that the PIP decision was subject to appeal ( and the decision that triggered the end of IS was therefore undecided) then it may follow that there was no justification for doing anything other than suspending the award pending the Tribunal disposing of the matter