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UC backdating
I have a tribunal listed for a hearing next week for a client wanting backdating of UC. Has anyone any ideas on the following…
Client was on ESA until she failed LCWA mid Oct 18. She asked for MR of the LCW decision and then at end of Oct claimed UC. She then had a phone call from JCP at beginning of Nov to say MR was successful and she could go back on ESA! She started getting ESA paid again. 3 days after the phone call she had an appointment at the JCP for her UC at which point she told the work coach about her ESA and they closed her UC claim. She tried to claim HB again and was refused and directed towards UC.
She came to see us in the Jan in arrears with her rent and we told her to claim UC again in order to get help with housing costs. As part of the claim she asked for backdating and was refused.
We have exhausted the DWP complaints procedure over the issue of incorrectly reopening IBESA following a UC claim and the case is now with the independent case examiner.
I could do with any ideas I could use at the tribunal on the backdating issue to see if i can get anywhere with that. I am aware it is only for a month and would be reduced the ESA she received for the period?
The only argument I can come up with is that she a)has a disability (depression)
and couldn’t be expected to claim earlier due to misadvice.
Aren’t you really challenging the (seemingly) groundless decision to terminate the first award in November rather than the refusal to backdate the second?
Aren’t you really challenging the (seemingly) groundless decision to terminate the first award in November rather than the refusal to backdate the second?
I’ve just been thinking upon the same lines but was too slow.
Yes I was also considering an any time revision against the decision that she was entitled to receive ESA again. Would the effect of this be to allow the original UC claim to be reestablished?
I was thinking there would be nothing to lose from having a pop at the appeal re backdating now client has a hearing but I am struggling to come up with a plausible argument!
There was a decision to end the first award which was (at least on the face of it) unlawful. That decision should be revised with the effect that the first UC award remains in payment.
Ideally you could argue that the correctness of this decision is within the scope of the existing appeal but it will depend on how it has been framed. If not, then you would have to request any time revision of the decision on the first claim because you are outside of the 13 months for an any grounds revision.
It also seems outrageous DWP taking incorrect action and giving completely incorrect information to a disabled person about the benefits relevant to that disability so that a correct and timely claim could not be made; can that be seen as ‘a result of the circumstance’ of having a disability (it couldn’t happen to someone without a disability), or does the Reg just mean narrowly that the person was in effect too unwell to claim?
One to take to the person’s MP and/or the APPG on UC? (I see it’s now with ICE)
It sounds to me like DWP will say the claimant voluntarily withdrew the first UC claim before a decision was made on it. Is that what happened?
Are you sure it was ibESA, and not contribution based or new-style?
If it was ibESA, and the HB was based off that, I don’t seen why the HB couldn’t have been put back into payment after the ESA MR was successful? Also a bit confused about the dates, did the MR take 2-3 weeks, or over a year?
It sounds to me like DWP will say the claimant voluntarily withdrew the first UC claim before a decision was made on it. Is that what happened?
Well they haven’t directly said that.
I do not know for certain whether the UC claim was determined before it was closed but i suspect it was given that they had awarded 2 weeks backdating to 12th Oct.
In a response to one of the complaints from the DWP they write that she claimed UC on 26th October and it was closed on 8th November. They also stated “she should have stayed on UC from 12 October however she requested her claim to be closed”.
Are you sure it was ibESA, and not contribution based or new-style?
If it was ibESA, and the HB was based off that, I don’t seen why the HB couldn’t have been put back into payment after the ESA MR was successful? Also a bit confused about the dates, did the MR take 2-3 weeks, or over a year?
Yes I’m certain it was IBESA. She wouldn’t have satisfied the contribution conditions for CB ESA after being on means tested benefits for several years.
MR took a couple of weeks.
There was a decision to end the first award which was (at least on the face of it) unlawful. That decision should be revised with the effect that the first UC award remains in payment.
Ideally you could argue that the correctness of this decision is within the scope of the existing appeal but it will depend on how it has been framed. If not, then you would have to request any time revision of the decision on the first claim because you are outside of the 13 months for an any grounds revision.
Thanks for your reply. Have you got any suggestions about what basis I could I argue that it is within the scope of this appeal on? I think it’s worth a try but on the face of things it seems that this appeal could solely concern the start date of the second claim.
OK, I’m pretty fuzzy in this area, but shouldn’t the HB claim merely have been suspended after she lost entitlement purely based off losing the ESA, at least until the council could otherwise decide she was not entitled on other grounds?
Seems a touch unlikely this would have happened in a couple of weeks (at least in my experience), and you could appeal the decision to stop the HB out of time on official error grounds?
Might be barking up the wrong tree, but at least I’ll learn something.
OK, I’m pretty fuzzy in this area, but shouldn’t the HB claim merely have been suspended after she lost entitlement purely based off losing the ESA, at least until the council could otherwise decide she was not entitled on other grounds?
Seems a touch unlikely this would have happened in a couple of weeks (at least in my experience), and you could appeal the decision to stop the HB out of time on official error grounds?Might be barking up the wrong tree, but at least I’ll learn something.
Yes it might be worth double checking exactly what happened with the HB but it seems pretty clear that it ended because she claimed UC and this prompted a stop notice to be issued to the LA.
Well they haven’t directly said that.
I do not know for certain whether the UC claim was determined before it was closed but i suspect it was given that they had awarded 2 weeks backdating to 12th Oct.
In a response to one of the complaints from the DWP they write that she claimed UC on 26th October and it was closed on 8th November. They also stated “she should have stayed on UC from 12 October however she requested her claim to be closed”.
Well, that seems pretty clear then that they believe she requested to close the claim. The question is only if it was before the claim was decided or not. I don’t think the fact they’d agreed to backdate for two weeks necessarily means they’d made a decision on the wider claim yet.
Anyway, even if a claim has been decided, a request can still be made to terminate the claim. However, DWP guidance now says that in such circumstances the claim should only be terminated after the end of that AP.
The request for backdating on the 2nd claim doesn’t seem likely to succeed at appeal, and if it does it will only be one month at most. Whilst you can probably argue that the claimant has an illness or disability, the difficulty is that that it does not seem that the delay in claiming was connected to the illness or disability. The issue is more that the claimant has gotten tied in knots because of the result of the ESA appeal and its interaction with her UC claim. But maybe it does succeed and then at least that’s up to a month of backdating.
The issue with the first claim. DWP are saying that she “requested her claim be closed”. I wonder what that actually looks like in reality. Did she go along to the Jobcentre and say “well they’ve reinstated my ESA so I guess I don’t need to be on UC anymore”. If so, did anybody try to explain to her that this isn’t how it works and that she couldn’t go back to irESA and HB?
ADM A4120 onward deals with relinquishment and explains that relinquishment will not always be effective where the claimant has not been advised of the consequences. It may well be arguable that this is the case here. I don’t think that the principles would be any different in dealing with a decision that a claim has been withdrawn before entitlement is established, although as Charles points out - the current guidance is that a relinquishment takes effect at the end of the AP after it occurs whereas I don’t know if that applies to withdrawal also.
In terms of your existing appeal, I think you need to be looking through the papers very carefully. What did the client say when asking for backdating or when requesting the MR? What went in the grounds of appeal? What the DWP have treated as a request for backdating on claim 2 could potentially amount to a request for revision of the termination of claim 1. It’s also possible that things your client has said in the journal could bring it in scope. It is all going to depend on what is in the papers; ideally this is something that could have been considered at an earlier stage.