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Forum Home  →  Discussion  →  Benefits for older people  →  Thread

UC to PC - no run on after a death?

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WillH
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Mixed age couple on UC.  Younger partner dies following terminal illness. I think there is no UC run-on (reg 37 UC Regs allows for max entitlement to be treated as if partner had not died, but it does not allow a claimant to be entitled if they otherwise would not be). s4 WRA 2012 requires surviving partner to be under pension age, but they are not, and nothing in reg 3 UC Regs helps them. I also checked the C&P Regs - but again, they do not (as far as I can see) provide for this situation (reg 9, again, only considers a situation where the surviving partner is entitled to UC).

So I think the surviving partner has to claim PC. They lose UC for the whole of the assessment period in which the death occurred.

In some ways, there isn’t a huge problem here. They were ALREADY of pension age, so they can, I think, backdate HB to the beginning of the assessment period in which the death occurred. And they can also backdate PC to the beginning of that assessment period (because that’s when UC stops).

So I think, in this case, there is no gap in entitlement. However, to the extent that there may be a loss compared to the situation the surviving partner would have been in if under pension age (for example, because of a run on of LCWRA element for the terminally ill partner), I wonder if it’s worth an argument that there should be a ‘run-on’ between benefits (difficult to compare though & will have to give this some more thought; this is similar to the problem when a carer has to move from IS to UC after the death of person cared for, though I haven’t yet established the exact circumstances of this couple, so don’t know the level of loss involved).

If anyone disagrees re the PC and HB backdate, please let me know!

Will

[ Edited: 10 Feb 2020 at 11:29 am by WillH ]
Charles
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I’m not convinced about the ending of the UC award. I think I agree with you from a legal point of view, but I think DWP will allow the claim to continue for the run-on period. I believe the computer system is simply set to allow the original claim to continue for the run-on period.

For example, in the case in Reg 37(a), the couple award will end, and a new award will be made to the survivor as a single person, but the regs still say “... the award is to continue to be calculated as if the person had not died ...” (my emphasis), which sounds like the original award is expected to somehow continue.

This is backed up by the ADM, Chapter A2 para. A2040 - see in particular where it says “An award of UC can be made to the single person at the end of this period ...”.

On a slightly related point, I believe there are multiple issues with the structure of UC where couple awards change to single awards and vice-versa. For example, the regs assume that the old award will automatically end when a couple separate/form, however they allow the new award to use the days prior to the separation/formation of the couple as part of the first AP.

Coming back to your question, I can’t see any impediment to a backdate of PC/HB in those circumstances.

WillH
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Well…maybe!

I agree that I am not sure what UC will do in this circumstance. However, I think that strictly speaking they shouldn’t follow A2040, because I don’t think reg 9(10) C&P Regs can apply to a single person who doesn’t meet one of the general entitlement conditions of UC.

I’m reluctant to say to a person in this already very sad situation that we just aren’t sure what UC will do… and I’m also worried that if they did continue to pay, it would be an overpayment!

But thank you Charles, I do see what you mean. I suppose we could try asking UC in advance (I fully expect this to be a useless exercise, but might as well give it a go!)

Charles
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What I meant was that A2040 suggests the couple award continues, and not that a new single award is made with payment at the level of a couple award. That shouldn’t work even if the survivor is below pension-age, as although the survivor may be entitled to a single award, they are no longer a couple so how can the couple award continue for the run-on period?

I was therefore positing that like the couple award would continue despite the survivor being a single person, perhaps in your case it would also continue.

I do get what you’re saying about what to say to the client! It’ll be worse than useless asking UC what they’ll do, as even if they tell you one thing, I bet they’ll still do the opposite!

WillH
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Charles - 10 February 2020 02:36 PM

What I meant was that A2040 suggests the couple award continues, and not that a new single award is made with payment at the level of a couple award. That shouldn’t work even if the survivor is below pension-age, as although the survivor may be entitled to a single award, they are no longer a couple so how can the couple award continue for the run-on period?

I was therefore positing that like the couple award would continue despite the survivor being a single person, perhaps in your case it would also continue.

I do get what you’re saying about what to say to the client! It’ll be worse than useless asking UC what they’ll do, as even if they tell you one thing, I bet they’ll still do the opposite!

Yes….again I see what you mean but don’t think we can necessarily conclude anything from it! Reg 9(10) C&P Regs says making a claim is not a condition of UC here (in circumstances where the survivor is otherwise entitled to UC), but I don’t think it implies that it is STILL a couple award. Reg 37 says that the award is to be calculated as if the person hadn’t died, but again, that doesn’t necessarily make it a couple award (‘as if’ in fact suggests to me that it isn’t a couple award where it’s the partner that has died).

I think you’re right though because (i) it’s possible A2040 isn’t even consulted & the computer decides, which I think could go either way here (the computer knows survivor is of pension age, so UC might just stop OR the run-on might be triggered) OR (ii) A2040 is consulted & that leads to a run-on decision (I haven’t found anywhere else in the ADM that considers the actual circumstances of the survivor not meeting a basic entitlement condition).

 

Charles
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Sorry, I’m not great at explaining myself, so I often think people haven’t understood me even when they have!

I think Reg 37 does imply it’s the couple award continuing. It says “In calculating the maximum amount of an award ... in the case of a joint award ... the award is to continue to be calculated ...”. That sounds like it’s the same award continuing, not a fresh award.

I do think it would then be ultra-vires. It is not explained anywhere why an award automatically ends when a couple separate or form, but it would seem to be due to Section 3 of the Welfare Reform Act when reading it with the meanings given in Section 40 to the phrases “joint claimants”, “single claimant” and “single person”. If that is the case, I don’t think the regs can allow a couple claim to continue when one member dies.

WillH
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Charles - 10 February 2020 03:13 PM

Sorry, I’m not great at explaining myself, so I often think people haven’t understood me even when they have!

I think Reg 37 does imply it’s the couple award continuing. It says “In calculating the maximum amount of an award ... in the case of a joint award ... the award is to continue to be calculated ...”. That sounds like it’s the same award continuing, not a fresh award.

I do think it would then be ultra-vires. It is not explained anywhere why an award automatically ends when a couple separate or form, but it would seem to be due to Section 3 of the Welfare Reform Act when reading it with the meanings given in Section 40 to the phrases “joint claimants”, “single claimant” and “single person”. If that is the case, I don’t think the regs can allow a couple claim to continue when one member dies.

Aha, ok Charles, I see what you mean (I think I really do this time!), with reference to reg 37: the wording of ‘the award is to continue to be calculated’ does imply that it’s the same award.
BUT, if a single person is treated as claiming when their partner dies, then I think it IS the same award (because there is nothing which causes that award to end, even if you apply s3 WRA - entitlement still applies).

However, in my client’s case, he isn’t entitled under s3, so I think that reg 37 never bites - the award should end.

As you point out it is not explained why an award automatically ends with a change of relationship status, perhaps because, generally speaking, it doesn’t, due to the treated as claiming provisions. I think it should be the case that it does end for a claimant who, in their new status, is simply not entitled….but we’ll see what happens in practice!

Paul_Treloar_AgeUK
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WillH - 10 February 2020 02:50 PM

I think you’re right though because (i) it’s possible A2040 isn’t even consulted & the computer decides, which I think could go either way here (the computer knows survivor is of pension age, so UC might just stop OR the run-on might be triggered) OR (ii) A2040 is consulted & that leads to a run-on decision (I haven’t found anywhere else in the ADM that considers the actual circumstances of the survivor not meeting a basic entitlement condition).

Just on this point, there is no automatic trigger or flag in the UC IT to the effect that someone is over SPA - this is a real problem as people are allowed to claim UC when they don’t have entitlement. We’ve been repeatedly assured by DWP that UC overpayments in these kind of situations won’t be recovered but there’s nothing in law to stop them seeking to pursue them as recoverable overpayments.

Benny Fitzpatrick
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“Just on this point, there is no automatic trigger or flag in the UC IT to the effect that someone is over SPA - this is a real problem as people are allowed to claim UC when they don’t have entitlement. We’ve been repeatedly assured by DWP that UC overpayments in these kind of situations won’t be recovered but there’s nothing in law to stop them seeking to pursue them as recoverable overpayments.”

This indeed continues to cause issues for our clients. Particularly when UC continues in payment after SPA, with SP taken into account as income, yet no-one at UC apparently realises that as a working age benefit, UC should stop at SPA. I have heard some ingenious excuses from JCP staff as to why the client is still getting UC, but very few acknowledgements of the mistake.

WillH
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Thanks for this. I am now wondering whether to suggest that one option would be to stop the UC claim when the death occurs, to prevent overpayment.

However, I’m now not sure about my initial instinct that the client could then backdate PC & HB to the beginning of the assessment period in which the death occurs. I think that can’t be done because entitlement cannot start when the claimant was part of a mixed age couple. So isn’t there a potential gap in entitlement after all?

Charles
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Hmm, hadn’t thought of that. I think you’re right about PC, but HB should be fine. The provision disallowing claims for HB only stops a claim actually made when part of a mixed couple, but won’t stop backdating to such a time.

WillH
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My thoughts are that if the client wishes to prevent an overpayment, they should stop claiming UC when they are bereaved.

UC would stop for that assessment period. Client can claim PC back to the date of death but not the date of the start of the assessment period. (I’ll have to think about your HB point, Charles).

Could then challenge the UC decision & (this would have to be via pre-action letter) state that the law should allow a pro-rated last assessment period as for people who reach pension age whilst on UC; any other result is irrational & discriminates (with absolutely no justification) against group of people who become ineligible for UC due to becoming single whilst already of state pension age.

Paul_Treloar_AgeUK
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Don’t forgot though that the pro rata UC payment is only available to someone making a PC claim in advance of SPA - in this case, that would effectively be impossible (unless you knew your partner was dying and stuck in claim PDQ).

WillH
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Good point Paul. I think that only increases the unfairness/irrationality as the client couldn’t do this even if the provision applied to them (the bereavement does involve terminal illness but not a known in advance date of death).

Paul_Treloar_AgeUK
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The whole interface between UC and PC is unfair and irrational imo Will.

WillH
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Paul_Treloar_AgeUK - 17 February 2020 02:15 PM

The whole interface between UC and PC is unfair and irrational imo Will.

Completely agree.