UC award following a nil decision for 1 month when earnings exceeded
Please can someone advise me for a young bereaved client.
UC was in payment for my client and her husband with the LCWRA and Carer elements. When the husband died UC continued to be paid under the bereavment run on rules. However, in the second UC assessment period following his death, the client’s wages included a bonus and pay rise and earnings exceeded. We are now in the third and final bereavement run on assessment period and I don’t know if UC will have kept the claim live and will complete the assessment for this period or if the claim has been closed. If it is closed and my client reclaims would she be entitled to the bereavement run on rate again? Once the bereavement run on ends her earnings will exceed. She needs the UC award to meet the criteria for the SF Funeral Payment. I hope that makes sense.
This is a really interesting question. The run-on after a death is provided for by Reg 37 of the UC Regs. It is drafted extremely badly, and it’s very unclear how it works.
DWP’s position has always been that when a couple cease to be a couple, or when a single person becomes part of a couple, the old award automatically terminates. It appears they believe the primary legislation (WRA 2012 - s.3 read with the definitions of “single claimant”, “joint claimants” and “single person” provided for by s.40 and s.1(2)(a)) causes this to happen, and there are various bits of secondary legislation which clearly take this to be the case (for example, Reg 9 of the UC etc (C&P) Regs).
That being the case, the run-on, as provided for by Reg 37 of the UC Regs, cannot work as that Reg suggests at face value. It says (my emphasis):
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;
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.
If, as a result of the primary legislation, the award has ended, secondary legislation cannot simply stop that happening.
This must therefore work in one of two ways:
(1) The Reg is implicitly saying that the effective date of a change of circs involving a death is two-and-a-bit months later, or
(2) The Reg means to say that even a calculation of a new award after a death should be calculated using the rates and thresholds etc which were used for the previous claim.
If (1) is correct, your client would not be entitled, as the original award has already ended for a different reason. If (2) is correct, I would presume the run-on can apply to further awards too, and therefore she would be entitled.
In the past I have leaned towards option (2) as being the more likely. However, in recent months there has been discussion between the DWP and the SSAC about a case where the younger member of a mixed-age couple dies. It is clear that DWP accept the run-on applies in such a case. It is still possible to say option (2) can work in such a case (implicitly meaning that there is an exception to the upper age limit in such a case), but I think it is more likely that DWP think option (1) is how the run-on works.
Anyway, this is all theory - what DWP would do in practice, I have no idea!
No insight to add other than that the SSWP has the power to treat someone has reclaiming where UC has stopped due to earnings. That can happen up to 5 times.
Reg 32A of the UC (Claims & Payments) Regs
How that would fit in with Charles’s very good points I just don’t know (you cannot reclaim in a capacity you no longer have - you’d think - so can you be treated as reclaiming at all).
In any case it is a discretionary power so I wouldn’t rely on it
Thank you both.
Today they put a letter in my client’s journal stating the bereavement run-on (they didn’t call it that!) would end on 10th Feb so I think the claim is remaining live. I have advised my client to add a journal entry asking them to confirm that the claim remains live for the next UC assessment period and if there is any action she needs to take. We shall have to wait and see what they say.
I think if it had been closed it would say that and there would be a rapid reclaim option.