Forum Home → Discussion → Universal credit administration → Thread
Computer says no
We’ve had a case where a UC claim was decided on the information provided by the client (3 bedrooms) - she omitted to say that the DWP had made a previous decision that one room was too small to be a bedroom. When we found this out several months later, we asked for a MR of the previous decisions. After a long delay it turns out that the previous decisions were not really decisions since they were made by a computer on the information provided by the client. So a MR isn’t the correct route because it wasn’t really a decision. They have now said that the information contained in our MR request will be treated as new information and an actual decision will be made on it.
I can see that the client was initially responsible for the incorrect decision but I can’t see that it is not a decision! Is this happening widely?
I think we are often left talking at cross-purposes with the DWP on these sorts of things. We are thinking of a “decision” i.e. a pounds in the pocket outcome decision incorporating a number of determinations - but the DWP are thinking of a “Decision” i.e. something which has come from a person who has the job title “Decision Maker”.
In the course of things, I think it’s probably right that the vast majority of “decisions” are not made by Decision Makers - they’re made by case managers approving or correcting a computer generated entitlement figure for the AP.
Conversely, a large number of “Decisions” made by Decision Makers are not actually “decisions” at all, but simply determinations which are then adopted by the case manager at the end of the AP.
In your case, as I think you’ve appreciated, the outcome decision incorporates a determination that the claimant is under-occupying, That is the appealable “decision” even though on the face of it, its come about due to a case manager just accepting an automated calculation of the HCE without any real further enquiry. It doesn’t need to now be formally referred to a decision maker (although whether that fight is worth having is I suppose another question).
Yes, when I thought about it I could see the point in part - usually a MR is where we think the decision is wrong on the information that was provided. In this case, in fact a decision was made (I think they are wrong on that) but the decision was correct on the information provided. What was read out to me by the Call Centre was that, as they now had different information they would make a decision based on the new information, possibly backdating. So I await their response.
Does not the computer says ‘no’ maxim illustrate the increasing issue with determinations and decisions being made by the IT system with no involvement of a ‘case manager’ or ‘decision maker’ however minimal.
The DWP has trumpeted its approach within UC as relieving human beings from involvement in routine actions / decisions so staff can concentrate of providing ‘tailored support’ to claimants.
We have moved from Supp Ben which was an entirely human process undertaken with the aid of bits of paper through IS, tax credits etc to UC where the IT system undertakes more of the lift to the point I wonder if a case manager or decision maker have any actual involvement at all, however minimal, in approving, for example, the payment decision at the end of each AP unless the system itself or the claimant / adviser flags up an issue in advance.
UC with its on line processes has become more of a ‘self service’ model akin to self assessment tax returns (or self service check outs) such that the claimant, rather than CM or DM, does both the data input and checking (and woe betide them if they make a mistake). This is perhaps compounded because in legacy benefits where awards were usually indefinite until there is a relevant change of circumstances, payments were made without the need for a DM (or computer) to make a decision. Whereas under UC each AP requires a decision to be made before payment is made. Given their case load CM’s or DM’s could not be involved however superficially in making the monthly payment decision for every claim on their case load.
I would suggest that is why UC in terms of the processes that lead to determinations and decisions is less transparent compared to legacy benefits (which weren’t exactly perfect) and why it can therefore be more difficult to identify errors, access relevant information and discover what has actually happened or get a coherent explanation from UC staff to resolve an issue or work out what it is that can / needs to be challenged - all of which takes more time. That may not apply to, for example, a WCA ‘fit for work’ decision in UC. But with other more complex issues the wall one bangs ones head against is that much thicker than it was under legacy benefits?
Not perhaps directly related to the above but a related symptom: https://www.theguardian.com/technology/2020/feb/05/welfare-surveillance-system-violates-human-rights-dutch-court-rules
[ Edited: 6 Feb 2020 at 12:59 pm by Peter Turville ]As has been said already, this particular situation is nothing new and to my knowledge for at least the past 8 years.
I had similar in 2012 when the Pension Service closed down a Pension Credit award on the basis that information that they had requested had not been supplied within the 30 day period.
It was explained to me that it was not a decision as such and therefore no MR/appeal could be lodged and that they had no need to comply with the Suspension and Termination rules. They described the position as a computer driven inhibition.
To save time and to avoid a protracted argument a new claim was made with a request that it be backdated to when the earlier claim had been closed.
... we asked for a MR of the previous decisions ... the previous decisions were not really decisions since they were made by a computer on the information provided by the client
Did your MR request, and their response, go all the way back and include the decision for the first AP, or did it not go that far back?
[ Edited: 7 Feb 2020 at 02:03 am by Charles ]It did go back to the first decision (when claimant, who was receiving the correct rate for a Live Claim area, had to make a completely new digital claim. There seems to have been no link-up at all on their part between the old and the new digital claim. I suppose, even if they agree the first decision about the number of bedrooms, they can argue that it only applies from the date they received the correct information. Is this why you were asking the question? Frankly at this point I’d probably accept that.
I was just trying to understand what they’re saying that the previous decisions “were not really decisions”.
Technically, if there is no change of circumstances in an AP (besides for a change of earned income reported through RTI), then each successive AP does not require a fresh decision, and it could possibly be said that they were simply “made by a computer”, and not decisions in a legal sense. However, the first AP does of course require a decision.
Concerning the change from live service to full service, that also does not require a decision, so the operative decision could still be the original decision made on the live service claim.
Technically, if there is no change of circumstances in an AP (besides for a change of earned income reported through RTI), then each successive AP does not require a fresh decision, and it could possibly be said that they were simply “made by a computer”, and not decisions in a legal sense. However, the first AP does of course require a decision.
I would be interested to know. Do you accept this as a general principle Charles, or are you simply using this example to conveniently illustrate your point on this thread? I have MRd payment ‘decisions’ as a means to get an appeal against something going when it would otherwise be out of time and so far have not been shot down. I’m a little concerned to see you saying that though.
To be honest, I don’t know! I’ve never had a problem with appealing a payment decision for other reasons, but I do know that if you try and appeal one on the basis that the RTI figures were wrong, they won’t allow you to request an MR, seemingly on this basis. (For what it’s worth, each payment decision comes with a section saying you do have MR and appeal rights.)
I think DWP struggle to understand the decision-based system, as Elliot Kent says. The policy intention seems to have been to require an RTI dispute to be made before an MR could be requested, so to enable that, the drafters of the legislation designed the system to allow income changes to not require a fresh decision. Those implementing UC in practice seem to have taken on board that an MR cannot be made concerning income figures without first raising an RTI dispute, but never understood that that was because fresh decisions are not made each AP!
I think there are lots of questions about how the structure of UC works in interaction with the SSA. The idea of a s8 SSA decision is that it will generally be permanently determinative of entitlement subject to further decisions which supersede or revise the earlier decision - but there is a tension between this and the DWP’s practice of only giving a notice at the end of each AP as to what was payable for that AP. Is the SSWP making a new entitlement decision each AP? And if so, how does that square with the Act?
My own view is that the decision on the first AP must be operative indefinitely going forward, however where nothing changes between APs, I think the DWP is effectively giving a fresh decision notice each AP which is just saying “nothing has changed, therefore you are still entitled to the same amount”. I don’t think there is anything wrong with doing this, and I think it is appealable decision (as a refusal to supersede) but I don’t see that there is any requirement to issue a new decision notice at the end of an AP if nothing has changed.
UC is always claimed and awarded indefinitely - per 36 C&P Regs - and I think it is important that the “assessment period” is ultimately a unit of payablility rather than entitlement. It is closer to a benefit week than a fixed term award of PIP say. So I think it is wrong to say that the decision at the end of the first AP can be treated only as determinative of that AP.
Eventually this will need to go to UT. I had a case which raised this a little while ago. The claimant had been in receipt of UC for (say) January to October. It had been suspended in October due to concerns about her capital level and in December, the award was terminated on the basis of excess capital and an OP from January to October was imposed. We were eventually able to establish that her capital had exceeded the lower limit only between June and August. So there was a limited OP for that period but there was also an underpayment for October to December which ought to have been offset. The Judge required submissions on whether it was possible in these circumstances for the Tribunal to make a decision on entitlement for October to December bearing in mind that there was no original end of AP decision notice for those two APs. The issue ended up being resolved without needing to be decided but it will come up in future cases.
We now have a new decision from Judge Hemingway - KD v SSWP (CUC) [2020] UKUT 18 (AAC) - the claimant was issued a “decision” from the DWP issued on 23 January 2018 to the effect that the MIF applied to his claim. There was then a “decision” at the end of the first AP on 16 February 2018 which applied the MIF to his entitlement which was then nilled. Was the claimant appealing against the decision to apply the MIF or the decision to nil his award? Judge Hemingway doesn’t give us a conclusive answer because it wasn’t really argued - but the suggestion seems to be that the “decision” on 23 January was only a determination and not appealable and the real challenge was to the 16 February outcome decision.
Ramble ends…
Nothing wrong with a good ramble.
But there is a fundamental difference between claims based on RTI and other claims because of Reg 61(2) which specifies that the RTI information has to be considered every AP. So there is, in fact, a supersession decision in every AP. There is a separate procedure for challenging RTI decisions. But is it the case that only RTI claimants will strictly have a right of appeal in every AP?
And what is the effect of the statement in all payment notices saying that there is a right of appeal - is there a public law (legitimate expectation) issue here?
My experience has been that the reluctance to accept MR requests has not been this nuanced - it has been based on refusing to accept that any decision has been made, ever. So it is more like the point Elliott made about confusion within the DWP about decisions requiring special people who are called Decision Makers.
And going back to the OP, I have had a couple of cases where they refused to take an MR but changed the decision (from the start of the claim) based on late provision of information. Client happy, job done, even if it might be a bodge.
[ Edited: 13 Feb 2020 at 10:53 am by Timothy Seaside ]My take on this general issue is whether WRA s7(1)&(4) and UC Reg. 21 can be interpreted to mean that a period of entitlement within an AP of one month means that entitlement subsists only for that single AP and therefore always requires an decision on entitlement (regardless of whether there has been any relevant change of circumstances) with a right of appeal to be issued? That position being similar to tax credits except that the period of entitlement is one year rather than one month.
Or is the correct approach that a period of entitlement subsists indefinitely (as in legacy) until there has been a relevant change of circumstances that would change the amount payable requiring a revision or supersession and only then a decision with a right of appeal? Therefore, there is no requirement to issue a decision notice with a right of appeal or even a payment notice (without right of appeal) until such time as there is a relevant change.
What happens in practice has more to do with the IT ‘build’ rather than the correct application of the legislation.
The former interpretation is arguably a simpler and more useful approach and would avoid in UC the issues that can arise in tax credits about whether a notice is a decision notice with a right of appeal or simply a payment notice (which looks much the same as a decision notice - confusing everyone including HMRC) against which there is no right of appeal..
As Elliott says a question for the UT in due course.
My take on this general issue is whether WRA s7(1)&(4) and UC Reg. 21 can be interpreted to mean that a period of entitlement within an AP of one month means that entitlement subsists only for that single AP and therefore always requires an decision on entitlement (regardless of whether there has been any relevant change of circumstances) with a right of appeal to be issued? That position being similar to tax credits except that the period of entitlement is one year rather than one month.
This is, I think, what the Judge who was dealing with my case provisionally thought - although this was some time ago and their view may have changed. I think it is interesting but wrong. Reg 21 defines an AP as a period of one month beginning with the first date of entitlement and each subsequent period of one month during which entitlement subsists . An AP is therefore defined in terms of a subdivision of a period of entitlement. A period of entitlement could equally exist which lasts less than one AP - but because the effect of much of the D&A regs is to backdate all changes to the first day of a given AP, it is unlikely to occur in practice.
And of course, when the claim is made, a decision needs to be made under s8 SSA - the effect of which is to destroy the claim. The decision can only then be modified by revision or supersession. If the claim is resolved by only awarding benefit for 1 month, then what is the basis for further decision making beyond the first AP? A claimant can’t be treated as implicitly making further claims each month because the C&P regs don’t allow for a claim to be made without various technicalities being met.
But who knows, I could be wrong.
My experience has been that the reluctance to accept MR requests has not been this nuanced - it has been based on refusing to accept that any decision has been made, ever. So it is more like the point Elliott made about confusion within the DWP about decisions requiring special people who are called Decision Makers.
“I am the Decider and I decide what is best” - George W. Bush
But who knows, I could be wrong.
Perhaps we should ask the SSWP herself? - given her claims before the select committee we should expect a clear and precise answer. Although I’m not sure scientific rigour and legal interpretation amount to the same thing!
Whilst I have a preferred interpretation I suspect that Elliott’s reasoning is far more likely to be correct and there is no requirement to issue either a payment or decision notice at the end of each AP unless there has been a revision of supersession. Of course it is helpful that a claimant is issued a notice for each AP.
I agree with Elliot, with perhaps one small exception. I am not sure that the monthly payment notice does actually refresh rights of MR/appeal if there has been no “outcome” superseding decision. I am not convinced that it is a refusal to supersede.
The right of appeal against refusal to supersede stems from the 2003 Neil Wood case where more than half of the decision is devoted to a “what if” scenario that hadn’t actually happened to Mr Wood. Mr Wood applied for a superseding decision on his DLA award … and he got one all right, but not the way he wanted. The first part of the case is about whether it was legitimate for DWP to rely on his application for supersession as the ground for a decision reducing his DLA. But the court then looks at what would have happened if DWP had simply refused to change the award at all. The conclusion is that Article 6 of the Convention requires that a flat rejection of a supersession application to be somehow shoehorned into the scope of a decision carrying a right of appeal.
Now these monthly UC payment notices are not issued in response to the claimant raising an issue and asking for a superseding decision. The claimant is quite happy with things as they are and does not need to be reminded that s/he has a right of appeal. All that is required is a payment advice - appeal rights could be left off I think.
Whether issuing a superfluous full decision notice with appeal rights does in fact create new appeal rights is another question. But I don’t think it is the same as a “refusal to supersede” case.
[ Edited: 13 Feb 2020 at 02:34 pm by HB Anorak ]I also agree with Elliot about a UC award being indefinite. There are countless provisions which make it clear that each successive AP is part of the same award. But you couldn’t get it clearer than r36(1) of the C&P Regs which Elliot quotes.
I like Elliot’s suggestion about the payment decisions being refusals to supersede. It’s a novel idea!
I don’t think there is an issue with the fact that the claimant didn’t request a supersession. Although the reasoning behind Wood was that a claimant must be allowed to appeal a refusal to supersede, any method used to ‘shoehorn’ that into the legislation wouldn’t appear to allow you to differentiate between a case where the claimant requested it and where the SoS considered it on her own initiative.
However, I am worried for a different reason: can we really say that the production of a payment statement, where the claimant’s circumstances are precisely the same as the previous month, is a decision under s. 10?
But there is a fundamental difference between claims based on RTI and other claims because of Reg 61(2) which specifies that the RTI information has to be considered every AP. So there is, in fact, a supersession decision in every AP. There is a separate procedure for challenging RTI decisions. But is it the case that only RTI claimants will strictly have a right of appeal in every AP?
Although it is true that RTI figures are looked at every AP, there is specific provision for that to NOT require a new decision - see reg 41 of the D&A Regs.
However, I am worried for a different reason: can we really say that the production of a payment statement, where the claimant’s circumstances are precisely the same as the previous month, is a decision under s. 10?
I suspect many FTT judges (at least locally) would not look favourably on the SSWP arguing that a decision under appeal was not actually an appealable decision despite what was said on the notice and would be minded to determine the substantive issue (and leave it to the SSWP to seek leave to appeal).
It does appear that a UT decision is required to clarify the issue of when a ‘decision notice’ is not a decision but merely a notice of payment - in a similar way to the issues that arose in the early days of tax credits around payment & decision notices etc.
Although it is true that RTI figures are looked at every AP, there is specific provision for that to NOT require a new decision - see reg 41 of the D&A Regs.
But what if the award doesn’t change? It seems to me that Reg 41 only applies if there has been an alteration. Does this mean there can’t be such a thing as a decision not to supersede, because there is no such thing as a decision to supersede?
I think it makes it harder to say the SoS has “decided not to supersede as there has not been a change in the RTI figure”, as that wouldn’t have required a supersession anyway!
However, if Elliot’s argument is correct, then this is all irrelevant, as once a decision not to supersede is made, then it is irrelevant what the possible reason for a supersession would have been. An MR/appeal will be allowed on all component parts of that decision, including the RTI figure.
So, say a payment statement really is the SoS making a decision not to supersede, as no real* change of circumstances has taken place, that would then allow an MR/appeal on the grounds of an RTI dispute as well.
* ie, not including a change of the RTI figure