Treatment of non-dep’s children under UC-Unlawful deduction?

My client is the tenant of a three bed property, where she lives with her 32 year old daughter and daughter’s children (aged 12 and 10 yrs). Daughter and her children have always lived with Mum (both children born into this household.) Both mother and daughter claim UC.

With regard to Housing Element, UC are deducting £75.15/week for the daughter. (Correctly), AND £53.96/week for under-occupancy of the room used by the children.

Sch 4, paras 2,8 and 10 UC Regs, seem to confirm that the children should be treated as part of the household, and that the under-occ deduction is therefore unlawful, but DWP are digging their heels in. I have asked them to provide a legally justified explanation for the deduction, so far without success.

This situation has been going on since UC was claimed in 2019 (but Cl has only just approached us for assistance). Cl is adamant that full details of her household were included on the original claim.

Have I missed something crucial that would allow DWP to make these deductions? If not, would it be possible, not only to get the deduction withdrawn, but to have the previous monthly awards revised (under “any-time revision”), to correct the underpayment?

Any thoughts welcome

Yes, I think you are correct. I would look to get it revised under official error.

I find that sometimes in cases like this the issue is caused by the way things have been reported in the initial claim e.g. because occupants have been reported but under the wrong heading or people have been reported more than once. It would probably be worthwhile checking out for yourself what was originally reported in the claim.

This is a perennial favourite, the issue is often DWP’s inability to grasp the concept of a child being a non-dependant.  It is actually para 9 of schedule 4 that nails it: the definition of non-dep captures anyone living with the claimant who is not listed among the exceptions.  The children of an adult non-dep are not excepted, therefore they too are non-deps and belong to the claimant’s EBU.  Of course they don’t attract any HCC being under 21, but when it comes to bedrooms they are counted.

On a proper reading of para 9 that is obviously correct anyway, but as additional proof of the policy intention you can point to subparas (2)(c) and (g) which exclude certain children from the definition: these exclusions would be otiose if it were not possible for a child to be a non-dep in the first place.

Elliot Kent - 29 January 2021 10:49 AM

I find that sometimes in cases like this the issue is caused by the way things have been reported in the initial claim e.g. because occupants have been reported but under the wrong heading or people have been reported more than once. It would probably be worthwhile checking out for yourself what was originally reported in the claim.

I couldn’t agree more, Elliot. Although my client is adamant that she gave the correct information on the claim, we weren’t involved at that stage. (And I have encountered previous clients who were similarly adamant, until we checked the original claim). I am currently awaiting a response from DWP other than “we think this decision is correct” (without giving any reason). There is also the fact that the client and her neighbourhood officer have queried the deduction and provided the correct information on at least two previous occasions (before it was referred to me), and DWP have refused to budge. (in fact they simply didn’t respond).

A quick update on this one:

Eventually managed to persuade UC to do an (extremely reluctant) MR on one of the monthly award calculations, which of course upheld the decision.

The resulting appeal was heard on 1st August 2023, at which the DWP Rep confessed that he couldn’t understand The original decision either, and recommended the appeal be allowed.

I now intend to request “any-time revision” of every monthly calculation on the grounds of “error of Law”.