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can carer element be paid following death of cared for person?

JAS1
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Hello,

Client’s mother died 21/04/2020.

Client claimed UC 06/05/2020. Was previously getting CA only.

CA paid 8 week run on which I think ended on, or around, 21/06/2020 (Sunday following 8 weeks after death)

I am wondering whether she could satisfy the below for the 8 week run on period and therefore be entitled to the Carer Element from the start of the claim to the end of the 8 week run on.

“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”

The wording in the CA regulations is “entitlement to CA can continue for up to 8 weeks after the death of the disabled person being cared for, provided that all the other conditions are satisfied”

So if the 8 week run on period counts as an entitlement to carer allowance shouldn’t the carer element be in payment?

Thanks

 

 

Elliot Kent
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Yes - as you’ve identified, entitlement to the carers element only depends on meeting the conditions of entitlement for carers allowance which your client did during the run on period.

From memory the UC claim form only asks something to the effect “are you caring for someone?” - your client presumably gave the answer “no” which is probably why the element was not included.

Liam C
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Hi

Just to add to this as I had a similar case.

The Carer’s Element would only be awarded in the first AP (6th May to 5th June).
Carer’s Allowance wasn’t in payment at the end of the second AP (5th July) so no Carer’s Element there.

Also, look out for the way they calculate deductions for the Carer’s Allowance in the second AP.
They should only deduct CA for the days 6th June to 21st June. See Para 2A of Reg 73 Universal Credit Regs 2013.
In the case I had, the DWP deducted a full AP’s worth of CA even though the run-on ended mid-way.

Regards,

Liam

JAS1
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Thanks both. I will compose a message and get her to put it on her journal and ask for a case manager to look at this then!

Liam - I think that’s exactly what they have done actually, they have deducted CA for a full AP so will get that challenged too.

Cheers!

Benny Fitzpatrick
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I recently dealt with a client whose Cared-for person went into residential care, but Carers Allowance failed to issue a stop-decision following the end of the run-on period (although payments of CA stopped). This resulted in the CA being deducted, leaving the client with no income, for four months (when he sought our advice).

Unusual, in my experience for CA to be so lax. I am awaiting a response to a complaint we lodged on this case.

KMJones
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JAS1 - 04 August 2020 10:22 AM

Hello,

Client’s mother died 21/04/2020.

Client claimed UC 06/05/2020. Was previously getting CA only.

CA paid 8 week run on which I think ended on, or around, 21/06/2020 (Sunday following 8 weeks after death)

I am wondering whether she could satisfy the below for the 8 week run on period and therefore be entitled to the Carer Element from the start of the claim to the end of the 8 week run on.

“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”

The wording in the CA regulations is “entitlement to CA can continue for up to 8 weeks after the death of the disabled person being cared for, provided that all the other conditions are satisfied”

So if the 8 week run on period counts as an entitlement to carer allowance shouldn’t the carer element be in payment?

Thanks

 

Thanks for sharing this - I was just checking on whether this glitch in UC calculations had been fixed yet. I can see from this that it hasn’t!

Would be interested to hear whether you get the carer element included properly - if it’s not done/ not done promptly, do consider using CPAG’s template judicial review pre-action letter: https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/carers-following-death

If anyone else is coming across similar cases, would really appreciate details. Always good to see them on here but do complete an Early Warning System form if you can: https://cpag.org.uk/policy-campaigns/early-warning-system

JAS1
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Not having much luck with this one.

We’ve asked them to add the carers element in for the first AP where she was eligible. They are dodging the request and just keep saying ‘it wasn’t included because when you made the claim you said your mother wasn’t receiving the right benefit’. They also won’t confirm to us whether they have miscalculated her carer allowance deductions as I think they have possibly deducted for a couple of weeks or so after it stopped.

Phoning them is useless as they can’t even see any of the relevant information and just say ‘put a message on your journal’

What are the chances of getting them to retroactively add that element in? Surely it is unfair of them to claim her mum wasn’t getting the right benefit while also deducting carers allowance from UC as income which would only be done if her mum was getting the right benefit!

I don’t even know if I can do an MR, as they are refusing to even make a decision one way or another.

Quite a lot riding on this because the client needs to apply for a funeral expenses payment however it has now gone over the 3 month deadline since the funeral date, she hasn’t been able to claim due to not getting UC. Reckon we have a chance of getting them to allow a late claim for funeral expenses due to DWP not sorting out her UC in time?

[ Edited: 14 Aug 2020 at 11:05 am by JAS1 ]
Elliot Kent
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You are requesting a late MR of the entitlement decision on the first AP which did not include the carers element.

Whether your client did or didn’t provide information isn’t relevant because the decision can be revised on “any grounds”.

JAS1
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Ah great so I can do MR on that first decision. I will see what they come back with on the journal as I would rather they sort it now but if not will get MR straight in.

Was hoping they could just amend it without the need to do a formal MR but maybe MR is the only option?

Am hoping we can get the funeral expenses payment sorted on a technicality, she did apply within 3 months of the funeral but was turned down due to no UC, if UC is then amended I hope we can use this to get this sorted too.

Cheers.

KMJones
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The surest way to get a quick resolution is with a judicial review pre-action letter.

A formal request for MR is an option, but your client has already asked for a revision - which should have been treated as an MR request in the first place. The matter is becoming increasingly urgent in light of your client’s (refused) application for other benefits, so JR is an appropriate remedy (considering the delays so far, and further delays likely - we’re hearing that MRs are taking longer and backlog increasing since lockdown).

DWP must respond within 2 weeks and our template letter for the missing carer element has been very successful. https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/carers-following-death

If you need support to use the letter, please email .(JavaScript must be enabled to view this email address).

JAS1
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That’s very helpful KM. So the request to add the element in can be treated as an MR even though the client did not explicitly use the term MR on the journal?

Elliot Kent
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JAS1 - 14 August 2020 03:18 PM

That’s very helpful KM. So the request to add the element in can be treated as an MR even though the client did not explicitly use the term MR on the journal?

“Mandatory reconsideration” is just a made up term.

The legislation refers to an application for an “any grounds” revision. There is no specific format or wording required.

It can be helpful to use the words mandatory reconsideration for the sake of clarity but it isn’t required.

[ Edited: 14 Aug 2020 at 03:30 pm by Elliot Kent ]
JAS1
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Ok good stuff I’ve always marked everything as MR but wasn’t aware it counted anyway! I’ve not done an SSCS1 online before but for future reference I assume there is a bit to explain why we don’t have the MR notice even though we’ve asked for a review then? Guess she could request the MR notice off UC if needed. Hopefully won’t need to go down that road though thanks to the advice here.

Elliot Kent
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JAS1 - 14 August 2020 03:35 PM

Ok good stuff I’ve always marked everything as MR but wasn’t aware it counted anyway! I’ve not done an SSCS1 online before but for future reference I assume there is a bit to explain why we don’t have the MR notice even though we’ve asked for a review then? Guess she could request the MR notice off UC if needed. Hopefully won’t need to go down that road though thanks to the advice here.

There is a difference between something which is actually a revision request and something which the DWP deals with as one. See e.g. discussion here https://www.rightsnet.org.uk/forums/viewthread/15546

I suppose in this case you are at a crossroads. You have the argument and just need to decide which forum you want to pursue it in.

(1) You can keep pottering around having arguments with the case manager and hoping that they fix it
(2) You can do a “proper” MR so that it gets sent off to a decision maker and maybe they change it.
(3) You can lodge an appeal and argue that the case managers comments amount to a refusal to revise the decision which gives rise to a right of appeal (possibly getting caught up in an argument about whether the appeal is valid).
(4) You can send a JR pre-action letter on the basis of the flawed decision and failure to deal properly with the reconsideration request.

[ Edited: 14 Aug 2020 at 03:55 pm by Elliot Kent ]
JAS1
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Excellent

Number 4 the winner there surely. Case manager proven themselves a waste of time, didn’t even bother to read the request fully or actually do anything helpful. Never done JR letter before so will follow the template which looks absolutely ideal for this exact scenario. Good to have this as an option in the future too if it’s a possible faster resolution.

Have a great weekend

JAS1
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JR letter was successful. Carer Element finally added in for the first assessment period and Carers Allowance removed as income. Thanks all!

Fiona
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Liam C - 04 August 2020 04:23 PM

Hi

Just to add to this as I had a similar case.

The Carer’s Element would only be awarded in the first AP (6th May to 5th June).
Carer’s Allowance wasn’t in payment at the end of the second AP (5th July) so no Carer’s Element there.

Also, look out for the way they calculate deductions for the Carer’s Allowance in the second AP.
They should only deduct CA for the days 6th June to 21st June. See Para 2A of Reg 73 Universal Credit Regs 2013.
In the case I had, the DWP deducted a full AP’s worth of CA even though the run-on ended mid-way.

Regards,

Liam

It is a shame that they don’t pro rata the carers element in the second AP for the number of days that they take carers allowance into account

Jess Strode
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DWP operational guidance now includes UC carer element for claimants receiving carers allowance run-on following a death, in their 1st UC assessment period (http://data.parliament.uk/DepositedPapers/Files/DEP2021-0349/24_Carers_v13_0.pdf) now says:

“When a new claim to Universal Credit is made by a carer (when the person they cared for has died) and Carers Allowance is still in payment (the Carer’s Allowance run on lasts up to 8 weeks) - they are entitled to the additional amount for carers in any full assessment period where Carers Allowance continues to be in payment for the whole of and includes the last day of that assessment period.”

The ADM has not yet been changed and we have updated the relevant PAP templates to reflect this, please continue to send the PAPs (as well as requesting an MR) to ask that the ADM be updated. The templates are here: https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/carers-following-death.

Thanks