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Universal Credit Retrospective Verification

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Jo_Smith
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It was never about checking and verifying. It was about the decision making proces by which you demand money from claimants, Neil.
We are Ok with checking and protecting public funds, but not OK with taking liberties with the proper process just because claimants are helpless and cannot stop the deduction!s. Talk about abusing your powers…

roecab
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tbidmead - 26 August 2021 11:03 AM

Has anyone come across examples yet where this has impacted claimants who were on UC in the short term last year but have since found work and not been in receipt of UC for many months?

I’ve not come across this myself but seen some quite desperate comments elsewhere online recently from people who have been hit with overpayment letters from DWP debt management and I guess this is what’s happening to them? e.g. having not claimed UC for many months they are not aware that requests for evidence have even been made…

Just wondering about what actually happens in those cases; presumably their UC accounts & journals would have remained live and requests for evidence would have been posted there? Are they being contacted in any other way? Very concerning…

(& thanks to Elliot as always for v helpful commentary above)

We had a client in this situation, he stopped claiming UC in January 2021, got paid work.

In April he got a text to say you have a message on your journal, so he logged in and was asked to send a photo of himself, holding his passport. Not unreasonably, as he was no longer claiming UC, and it being frankly quite an odd request he did not reply, he actually thought it might be a scam.

He then got an overpayment demand, just shy of £6k, he then put an in MR himself with all of the info requested which as well as the above was proof or rent as well, which was refused as they would not accept it saying he did not provide it within one month.

He then approached us and we highlighted that he can provide info late, and said why late, appealed, which has been revised and lapsed.

Andyp5 Citizens Advice Bridport & District
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Is Neil Couling on behalf of the DWP suggesting albeit implicitly that the following ID and biographical checks (see links below), were not carried out to a sufficient standard by the dept (or are not sufficiently robust / fit for purpose) and awards were made regardless on receipt and paid without sufficient scrutiny?

And/or is he insisting on behalf of the DWP in the absence of face to face ID’s at the time, these must be done retrospectively? 

Would be great to have some clarity

I note selfies, don’t feature in the guidance below. Would be great to have some clarity on this apparent recent innovation too?

http://data.parliament.uk/DepositedPapers/Files/DEP2019-0980/64._Identity_Verification_v10.0.pdf

http://data.parliament.uk/DepositedPapers/Files/DEP2021-0349/18_Biographical_checks_v3_0.pdf

JimT
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I’ve just picked up one of these cases. A passport was provided when the UC claim was started in March 20. Claimant was recently asked to supply further ID. He didn’t read the letter properly and only supplied one piece of ID (driving licence) instead of two. Now got a ‘decision’ that his entire UC award (£12,000) is an overpayment - “you have failed to supply the evidance (sic) on time”.

Ridiculous!!

Mr Finch
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It sounds like an almost exact repeat of the Concentrix tax credits fiasco and the same faulty decision making premise that failing to supply every thing that might be demanded is some sort of automatic lock-in. I just hope FTTs will be aware of the fallacy this time.

Andyp5 Citizens Advice Bridport & District
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Mr Finch - 08 September 2021 04:05 PM

It sounds like an almost exact repeat of the Concentrix tax credits fiasco and the same faulty decision making premise that failing to supply every thing that might be demanded is some sort of automatic lock-in. I just hope FTTs will be aware of the fallacy this time.

Thought I had completely expunged the ‘Concentrix tax credits fiasco’ from my mind, but I fear that will turn out to be a good analogy for this current enterprise.

Mr Finch
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“Retrospective verification of 900,000 ‘at risk’ universal credit claims made during Covid-19 pandemic finds 11 per cent involved fraud or error “

https://www.rightsnet.org.uk/welfare-rights/news/item/retrospective-verification-of-900000-at-risk-universal-credit-claims-made-during-covid-19-pandemic-finds-11-per-cent-involved-fraud-or-error

Is this real fraud or error, or didn’t pass retrospective verification?

shawn mach
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Mr Finch - 10 September 2021 01:55 PM

“Retrospective verification of 900,000 ‘at risk’ universal credit claims made during Covid-19 pandemic finds 11 per cent involved fraud or error “

https://www.rightsnet.org.uk/welfare-rights/news/item/retrospective-verification-of-900000-at-risk-universal-credit-claims-made-during-covid-19-pandemic-finds-11-per-cent-involved-fraud-or-error

Is this real fraud or error, or didn’t pass retrospective verification?

New link:

Retrospective verification of 900,000 ‘at risk’ universal credit claims made during Covid-19 pandemic finds 11 per cent ‘had something wrong’

Peter Turville
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Response to MP from DWP Complaints Resolution Manager regarding a case where claim has been ‘closed’ and £6.3K overpayment decision posted to account. From the correspondence it is clearly a retrospective verification of ID case.

“No official decision was made because we were instructed to close claims where claimants did not supply required evidence.”

I am assuming form the wording of the response that that instruction came from the Repair Team.

sigh

Andrew Dutton
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Peter Turville - 20 October 2021 11:36 AM

Response to MP from DWP Complaints Resolution Manager regarding a case where claim has been ‘closed’ and £6.3K overpayment decision posted to account. From the correspondence it is clearly a retrospective verification of ID case.

“No official decision was made because we were instructed to close claims where claimants did not supply required evidence.”

I am assuming form the wording of the response that that instruction came from the Repair Team.

sigh

Legality thereof?

Peter Turville
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Andrew Dutton - 20 October 2021 11:43 AM
Peter Turville - 20 October 2021 11:36 AM

Response to MP from DWP Complaints Resolution Manager regarding a case where claim has been ‘closed’ and £6.3K overpayment decision posted to account. From the correspondence it is clearly a retrospective verification of ID case.

“No official decision was made because we were instructed to close claims where claimants did not supply required evidence.”

I am assuming form the wording of the response that that instruction came from the Repair Team.

sigh

Legality thereof?

We have suggested to MP’s team they ask that question and provided them with ref. to relevant Regs. as per Elliot’s post above etc.!

Diogenes
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UC has not done the MR on my client’s case that was requested in march 2021, I lodged an appeal without an MR but tribunal has not accepted Jurisdiction and says client has to wait for an MR before he can appeal, in meantime he and his partner are having deductions from both their wages to repay UC, surely something can be done to get this case in a Tribunal if UC will not do the MR !!!

Daphne
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I raised this issue again yesterday in our stakeholder meeting and have followed up my previous email and also sent info from Peter and Diogenes. I have asked for an urgent response for what it’s worth

Paul Stockton
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Your legal remedy is judicial review. CPAG have a template. Debt Management have told us they suspend action pending any MR application so maybe you could ask them at least to stop the deductions until UC make a decision.

Elliot Kent
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It is worth remembering, both in these cases and more generally, that the obligation to request revision before appealing only applies where the decision notice specifically says as much. If a decision is made which does not, for whatever reason, include “a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.”, there is no obligation to go through the MR process and the appeal can be lodged directly with the Tribunal.

I am not quite sure what is going on in the cases being referred to by Diogenes and Peter, but if a decision has been made to impose the overpayment and a statement to that effect has not been made, then the Tribunal would have jurisdiction immediately without an intervening MR.

If the decision notices do state that your client can request MR, then clearly the DWP needs to deal with their request along ordinary lines.

I would say that the ID cases are perhaps a slightly different one to the usual case. Social security law doesn’t deal particularly well with identity issues because the legislation invariably assumes that the claimant’s identity is established. If there is a dispute about whether somebody is the claimant or not, it isn’t wholly clear to what extent that dispute falls within the ordinary decision - appeal paradigm.

Diogenes
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thank you Daphne and Paul, I will try that tac with debt management, , I will a have a look at the JR route. I was disappointed the Tribunal did not at least make a Direction to the DWP to get them moving on the MR.

Diogenes
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Elliot, all I have seen from the client is a demand from debt recovery and an attachment of earnings order to his employer, no mention of MR or appeal rights, BUT he may have had other letters from DWP which he has lost or forgotten .I suppose I could ask for a statement of the Tribunal decision and consider an appeal but as it has taken 6 months for the DWP NOT to do an MR I dread to think when a UT would be looking at this Tribunal refusal to take on the case.    As they say around here, ” it’s doing me ead in “

Peter Turville
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To confirm in the case we have seen as above (we are supporting MP and local advice centre with the case) the o/p decision notice states that an MR is required before appeal. It also states:

“On x.x.x you were asked to upload proof of your identity. Y despite reminders you have failed to do this, this meant that your claim has now been closed when the date it was opened” [DWP typo!].

Perhaps this is a standard para. used in such cases?

There is no evidence that DWP has made a revision or supersession decision for the purposes of SSAA s71(5A). From further info. it appears DWP may have obtained an attachment of earnings order to recover the o/p (although it may relate to legacy o/p that was being recovered from the UC award prior to it being ‘closed’).

JimT
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for my case the claimant got a letter on the journal ref UCD367 as follows:

Important: you’ve been paid more universal credit than you are entitled to. You now need to pay this back

You have failed to provide the evidance on time.
Because of this change you have been overpaid £12666.76 and
now need to pay this money back.
You are now in a minority of people who have received money they’re not entitled to.

the letter has the standard section regarding mandatory reconsideration etc. MR is now requested.

Elliot Kent
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Diogenes - I think that it would make sense to do a subject access request for whatever decisions have actually been made before setting about challenging them. However I do wonder what you mean when you say “tribunal has not accepted Jurisdiction”. Is there actually a judicial decision on this or have you just got a letter from the clerk?

Peter - It could well be a standard phrase although the painful DWP-ism of “closing” a “claim” for UC is fairly ubiquitous at this point. The claim that “No official decision was made” is obviously flatly contradicted by the fact that you have a decision notice insisting on an MR.

Diogenes
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Tribunal decision says “the appeal is struck out as it is outside the Jurisdiction of the Tribunal,” it does say we are appealing the UC claim being stopped, what we are really appealing is the overpayment decision. I am going down the request to suspend recovery route, as a first option, my cl has already asked for this but been ignored , we are asking again in stronger terms.

[ Edited: 20 Oct 2021 at 04:21 pm by Diogenes ]
Elliot Kent
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Well you are appealing the decision to revise the original entitlement decision(s) so as to reduce your client’s entitlement to nil and thereby create an overpayment. There might be some mileage in a UT appeal, particularly on the grounds that the FtT did not take any steps to satisfy itself that the decision you were appealing against was in fact subject to an MR condition to begin with - but I do think that you ought to explore what your client was actually issued with in terms of decision notices etc.

Peter Turville
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Elliott

As you outline above a decision to ‘close’ a claim under UC(D&A)Reg. 47 is not retrospective. But it appears DWP are not (at least in some cases) issuing a decision notice under that provision and/or that the earlier decision(s) to award UC has been revised or superseded. They are simply making a statement that the claim has been ‘closed’ and issuing an overpayment decision.

So one issue in such cases must be whether a statement that a claim has been ‘closed’ or even a formal decision notice to that effect (with or without a notice requiring an MR before appeal) is also a decision to revise or supersede for the purposes of SSAA s71(5A)?

Or, whether a statement that a claim has been ‘closed’ is sufficient to constitute a decision notice (without notice of a requirement for MR before appeal) and therefore can be appealed direct to HMCTS?

Therefore, depending on what has been notified in any particular case, whether MR, direct to appeal, notice before action and any other tactic are appropriate actions to advise.

Yet another example of DWP conflating separate processes / requirements / decisions into one sorry mess.

Ianb
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Peter Turville - 20 October 2021 04:55 PM

.. one sorry mess.

Reading this has put by brain into a spin but that bit I understand (and agree with)!

Seems likely that these cases are mount up until such time as there is a tribunal ruling to resolve matters.

Mr Finch
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I’ve been trying to look for a DMG paragraph to try and explain to UC their obligations, but the only thing I can find is the Evidence Verification document here: https://www.rightsnet.org.uk/universal-credit-guidance

This contains the unfortunately phrased

If the claimant fails to provide the information or evidence the claim can be considered for closure 1 calendar month plus 1 day after the date that the evidence was requested.

This is probably intended to apply before the first payment is ever made, so ‘closing’ would be equivalent to refusing the claim. But if a DM is seeking to verify a claim later, it wrongly implies the existence of an automatic ‘closure’ penalty for failing to supply evidence. This is the danger of treating guidance as if it were a statutory provision.

Elliot Kent
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There’s no such thing as “closing” in social security. It’s a nonsense. Whatever it means to “close” something, it cannot be done to a “claim” in a case such as Peter’s, because the “claim” has long since ceased to exist as a function of s8(2) SSA.

The DWP may as well be saying “you have been excommunicated by Universal Credit and have therefore been overpaid”. It makes as much sense.

The effect though of R(IB)2/04 is that the FtT needs to look at the substance of what the decision is trying to achieve rather than the manner of expression. Can the decision be recast in such a way which is coherent with the legal powers at play? Or, conversely, is the decision just so baffling and incoherent that it must just be set aside altogether? The answer to that will depend on the individual case.

 

Mr Finch
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Elliot Kent - 21 October 2021 10:40 AM

...it cannot be done to a “claim” in a case such as Peter’s, because the “claim” has long since ceased to exist as a function of s8(2) SSA.

Excellent point, and more reason to think the DMG document was intended to apply only to the first decision on the initial claim.

Peter Turville
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I think we are all agreed that in these type of cases / issues the DWP is riding rough shod through the legislation and potentially acting unlawfully.

What is unclear, in any particular case, is what statutory provisions (if any) DWP has applied and, therefore, what statutory right to challenge that decision exists and/or what other action will be most effective. It also illustrates the practice of the DWP to use terms like ‘closed’ which have no meaning rather that the appropriate statutory terminology.

I suspect terms like ‘closed’ are used within the operating procedure instruction for the UC soft wear processes and have crept into the way actions on a claim or award are then recorded and notified to claimants. For example, long term readers will recall the DWPs use of the term ‘dispute’ to cover revision, supersession and appeal and the problems that caused in working out which was being referred to.

At least in the case we are assisting with the claimants had an award of UC. The SSWP has now stopped payment of that award and raised an overpayment on a legal basis that is uncertain. The SSWP has always had a power to require claimants to provided evidence and information in connection with an award of a benefit. For example UC(C&P)Reg. 38. This is the power used by PIP to initiated a so called ‘planned intervention’ (note the routine use of meaningless terminology) of a current PIP award. Arguably, in UC cases of ‘retrospective verification’ this is the power being used to now require the claimant to provide evidence of ID, housing costs etc. in connection of an award that would normally have been required as part of the claim process under UC(C&P)Reg. 37.

In the case where there is an award of UC that has been ‘closed’ that then raises the issue of the relationship between UC(C&P) Regs. 38, UC(D&A)Regs 45 -47, the powers to revise or supersede and in turn the requirement in SSAAs71(5A) regarding overpayments.

What appears to be happening is that the DWP has adopted an administrative procedure to ‘close’ an award that may have no basis in the legislation.

[ Edited: 21 Oct 2021 at 11:35 am by Peter Turville ]
HB Anorak
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Others have already said it one way or another, but it boils down to this I think:

- DWP can use the mechanism of suspension followed by termination to end an award prospectively when a claimant fails to cooperate with an intervention, if we must call it that.  The effect is that the suspended money never gets paid and the ongoing award is forfeited.  There is a right of appeal but arguably that right is limited to the question whether the decision to terminate was correct at the time.
- Or DWP can draw an adverse inference about the facts and rely on that to revise earlier decision(s) and create an overpayment.  There is a right of appeal on the facts - the claimant gets another bite of the cherry.

I do not think they can retrospectively say that a claim which ceased to exist when UC was awarded was in fact defective and the award is null and void, which is what they seem to be saying.

Elliot Kent
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Yes I think that’s a fair summary.

It’s not really greatly dissimilar in principle from the situation where someone is getting HB and is asked to but then doesn’t produce their income details for a past period of time. The DM can suspend the award pending production of the information and then terminate the award solely on the basis that the information wasn’t provided and leave it at that - but often the DM will instead opt to revise the award and create an overpayment on the basis of a presumption that the person was suddenly earning some enormous salary which excluded them from HB entitlement. That can then be challenged substantively.

I am not sure it is quite the case that they are trying to declare claims as retrospectively defective. I think the position is just that they are not giving any thought at all as to what it is they are (legally) doing. In my case there wasn’t a single indication in the decision letter, MR or appeal response as to what the legal basis of any of this was. It was only once GLD got involved that they sought to justify their decision making ex post facto as being a revision based on mistake of material fact.

[ Edited: 23 Oct 2021 at 12:23 pm by Elliot Kent ]