UC NEW CLAIM and CARERS ELEMENT.

Case background - couple on Pens Cred, husband dies 19/11/19,wife has Carers Allowance (8 week run on)under State Pens age claims UC 25/11/19,assessment period 25/11/19 - 24/12/19,no award of Carers Element under UC REG 37 Run-on after a death:
37.  In calculating the maximum amount of an award where any of the following persons has died—
(a)in the case of a joint award, one member of the couple;
(b)a child or qualifying young person for whom a claimant was responsible;
(c)in the case of a claimant who had regular and substantial caring responsibilities for a severely disabled person, that person; or
(d)a person who was a non-dependant within the meaning of paragraph 9(2) of Schedule 4,]
the award is to continue to be calculated as if the person had not died for the assessment period in which the death occurs and the following two assessment periods.

Reg 29 Carer Element relates to UC Reg 30 Meaning of “regular and substantial caring responsibilities for a severely disabled person”
30.—(1) For the purposes of Part 1 of the Act and these Regulations, a person has regular and substantial caring responsibilities for a severely disabled person if they satisfy the conditions for entitlement to a carer’s allowance or would do so but for the fact that their earnings have exceeded the limit prescribed for the purposes of that allowance.
(2) Paragraph (1) applies whether or not the person has made a claim for a carer’s allowance.
(3) But a person does not have regular and substantial caring responsibilities for a severely disabled person if the person derives earned income from those caring responsibilities .

Social Security Contributions and Benefits Act 1992 SECTION 70 Invalid care allowance
(1) A person shall be entitled to an invalid care allowance for any day on which he is engaged in caring for a severely disabled person if—
(a) he is regularly and substantially engaged in caring for that person;
(b) he is not gainfully employed; and
(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.
(1A) A person who was entitled to an allowance under this section immediately before the death of the severely disabled person referred to in subsection (1) shall continue to be entitled to it, even though he is no longer engaged in caring for a severely disabled person (and the requirements of subsection (1)(a) and (c) are not satisfied), until—
(a)the end of the week in which he ceases to satisfy any other requirement as to entitlement to the allowance; or
(b)the expiry of the period of eight weeks beginning with the Sunday following the death (or beginning with the date of death if the death occurred on Sunday),
whichever occurs first.”.

It appears the only way the Carers Element could be paid is if she makes the claim on date of death ?  Does not satisfy UC Backdating of claim regs. Has anyone came across this before? client not wishing to pursue appeal ,considering highlighting to MP as Regs may be Ultra Vires ,any views ?

I think Reg 37 and the Carers Allowance run-on operate independently of one another.  She isn’t going to be entitled to a continuation under Reg 37 because there is nothing to continue - that reg only works if the person was already on UC before the death.  But separately from that, she meets the conditions for a carer element because she is treated as still providing care under Reg 30(1).  I think people have commented on here before that it will only last for one AP under UC’s change of circumstance provisions - at some point during AP2 the CA run on will expire and that will affect UC for the whole of the month in which it happens.

To add: CPAG have a JR pre-action template letter arguing that reg 37 should also apply in these cases. See the second letter here.