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Universal Credit Retrospective Verification

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nevip
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Peter Turville - 21 October 2021 11:29 AM

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.

This ‘closing of claims’ rubbish is not new to UC.  It has a long history.  In CJSA/473/2003, the Commissioner said the following:

“11. It follows that the claimant’s indefinite award of a jobseeker’s allowance could only be terminated by a decision of the Secretary of State on supersession under section 10 of the Social Security Act 1998.

12. As far as I can tell, the Secretary of State does not terminate awards of jobseeker’s allowance under these provisions. This is despite decisions like mine in CJSA/2327/2001. This is reflected in the procedure followed and in the language used. The procedure followed does not involve notification of termination of the award, which is standard procedure under section 10. And the language used is different from that used in that section 10. There is no reference to supersession. The expression usually used is that the ‘claim is closed’. In this case, there is a computer printout that refers to the claim as ‘dormant’. That language originated in the adjudication procedures that applied before the Social Security Act 1998. It regularly led to uncertainty. It has now been carried over into the new adjudication procedures under that Act. It remains uncertain. It is also now inappropriate, as section 8(2)(a) provides that once a decision has been made on a claim, it ceases to subsist. So, there is no claim left to close. It is high time that the Secretary of State changed both the procedure followed and the language used”.

 

 

Diogenes
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rather a lot of information here, it is a shame that having had the UC arm of DWP ignore my client’s MR for 6 months and recover overpaid UC from his wages in the meantime, the Tribunal just opted to decline Jurisdiction and kick the ball down the road. And my client’s MP who he contacted at the start of the fiasco has yet to contact him after 2 months.

[ Edited: 25 Oct 2021 at 12:00 pm by Diogenes ]
Daphne
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This is the response I received from DWP after chasing (2 months after I sent the urgent email!)

In response to your question ‘On what basis DWP are revising or superseding previous decisions’ (email dated August 2021 titled - retrospective verification of UC awards and overpayment ‘decisions’) I have been provided with the following response:

As you’ll be aware, regulation 38 of The Universal Credit etc. Claims and Payments Regulations 2013 allows the Secretary of State to ask claimants for information or evidence to determine whether an existing award should be revised or superseded. Further the failure to provided that information or evidence triggers regulation 45 of the UC etc. Decision and Appeals regulations – suspension in prescribed circumstances. It is accepted that regulation 38 is not the means by which the Secretary of State can mount ‘fishing expeditions’ against claimants. Its use must be seen to be reasonable and proportionate. If there is reason to consider that a review is required, then given that taxpayers’ money is potentially at stake, quite rightly that review should be undertaken. What, of course, is then critical, is identifying affected cases and following correct process.

During COVID the department recognised that applying the business as usual rules to claims for Universal Credit (UC) would be ineffective in meeting the immediate needs of those who would need state support. Accordingly, a whole raft of easements were put in place to speed up the usual decision making process. This included only doing limited checks of a claimant’s ID. This phase was, of course, not an indefinite easement and it was always the case – and claimants were alerted to this – that these cases would be revisited once things got back to normal. This would be, as you allude to, the “Repair Stage”. This would involve contacting the claimant and asking them to confirm various aspects of their claim, including their ID. Regulation 38 would be authority to trigger the process.

The suspension rules provide that there should be a minimum of one month between suspension and entitlement terminating. Claimants whose awards were reviewed under the “Repair Stage” would have been requested to provide evidence and have been given at least two weeks to provide that evidence before suspension – a minimum of six weeks. This period gives claimants ample time to provide whatever information is requested. Of course, there should be a suspension notice put on a UC claimant’s journal after two weeks, with a full decision notice provided one month later. At no time should claimants be unaware as to what is happening with their claim and the action they need to take. If there is a failure to reply and entitlement terminates, the decision maker has to decide from what date UC should not have been paid. Normally that would be the date from which payment was suspended, but where the issue goes to entitlement in circumstances which cast doubt on the entire award, then they would be looking to revise the decision effective from the date of claim. Having revised, they would calculate the resulting overpayment and initiate its recovery.

Of course, all such substantive decisions not only have to be based in law but must be notified because they carry the right of appeal. The first appealable decision made is that terminating entitlement; then you have the overpayment decision (calculated once the entitlement decision has been revised or superseded). It would be unlawful not to notify claimants of these decisions and their appeal rights.

If cases have not been handled to the letter of the law then, of course, there would rightly be grounds to complain. In particular where overpayments have been raised without claimants being given the right of dispute. But in terms of the actual policy intent, namely, to repair cases, then that of itself has a robust legal underpinning and will not be stopped. As I say, the process gives claimants ample time to provide all relevant information – time which can be extended – and failure to engage cannot simply be overlooked. We do not want to generate overpayments, large or small, when in reality there was and is entitlement, but where claimants ignore repeated requests for evidence, that would indeed be the outcome.

I trust this addresses the issue you raised.

I have gone back to them and offered to provide case details where revision/supersession not being properly notified, and/or MR/appeal rights not being notified so if anyone has cases they can give me details (name, Nino, postcode) that would be helpful

Diogenes
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Daphne, very helpful, thank you. My issue is that having requested an MR within the time limits, now more than 6 months ago, UC have ignored it and taken no action on the MR but continue to recover money by attachment to earnings from both the partners on the claim, Requests to suspend recovery have not been responded to, our local MP is also being unhelpful. I will check if my client consents to his nino etc being disclosed to you.
Its only with the help of a very decent man in my local JCP who confirmed the MR had been received by UC that I was able to find out anything at all about the situation.

Daphne
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they have asked for case studies so if any of you can supply them that would be really helpful - thanks

Andrew Dutton
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Hi Daphne - I have a claimant who has a meeting at his local Jobcentre this coming Saturday and I will send a complete case study asap after that.

As things stand, the salient points are:

In 2020, claimant was in work in London but the employer ceased trading - no work available, claimed UC
Moved to our area, got a new job and rented accommodation
Posted changes of address etc on UC Journal and payments varied with wages
In early 2021 claimant posted a request to close the UC claim as wages were now higher - no actual UC paid since Sept/Oct 2020
Claimant changed email address and phone number and didn’t think about UC again until March 21 when he was notified of £5000 overpayment
Claimant could not get back into the journal, could not get and email address to contact, wrote to UC in May 2021 - this was sent to Debt Management who said that they ‘cannot look into this appeal’ and he would have to contact UC by phone
Deductions from wages began
Sought advice June 2021 - we sent authorisation and queries to UC right away
No reply - reminder sent
Oct 2021 - DWP advised that ‘as [claimant] failed to engage [with the ‘Retro team’] (whether this be due to a change in contact details), the retro team were unable to verify the claim as being legitimate so full claim closure actions were taken.’
Offer of Jobcentre interview followed - ID will be needed - MR will be progressed from there

On the face of it, DWP had plenty of opportunity to obtain what they needed from the claimant as they knew where he lived even after he’d closed his claim. I’ve asked if the claim had actually been closed when he asked for it- no reply to that yet.

Claimant said in an email:’ What I don’t get, is that how come if this information is so important, why did they not write to me asking for it when I did not respond on the journal, they are quick enough to write and tell me I owe it back, but not that they need information from me!’

More after Saturday…..

Ianb
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“Normally that would be the date from which payment was suspended, but where the issue goes to entitlement in circumstances which cast doubt on the entire award, then they would be looking to revise the decision effective from the date of claim. “

Seems to me that in most of these cases it is debateable whether or not failure to get this additional ID verification truly casts doubt on the entire claim.

Leaving that aside, having been notified of closure and overpayment if claimant then provides the requested ID information DWP should presumably then revise the decision on the grounds of new information received.

Charles
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Ianb - 26 October 2021 08:06 PM

“Normally that would be the date from which payment was suspended, but where the issue goes to entitlement in circumstances which cast doubt on the entire award, then they would be looking to revise the decision effective from the date of claim. “

Seems to me that in most of these cases it is debateable whether or not failure to get this additional ID verification truly casts doubt on the entire claim.

I anyway don’t like the phrase “casts doubt”. That’s not nearly enough to revise.

The DM can only revise the original decision if s/he believes, on the balance of probabilities, that the decision was made in ignorance of some ‘material fact’ (Reg 9(b) of the UC etc. (D&A) Regs 2013). The ‘material fact’ in this case being that the claimant is not who they claimed to be, or are not responsible for the children they said they were etc etc.

It is true that a ‘material fact’ can be inferred indirectly from evidence (see for example the ADM at A4268), but the standards of proof still apply - see the ADM at A1340.

Leaving that aside, having been notified of closure and overpayment if claimant then provides the requested ID information DWP should presumably then revise the decision on the grounds of new information received.

Unfortunately, I don’t think this will always be correct. A decision (whether the original decision, or the decision as revised) can only be (further) revised due to ignorance of a material fact if the result had been more advantageous to the claimant than it should have been.

So, if the original decision was correctly revised (due to the DM inferring from the lack of ID being provided that the claimant, on the balance of probability, was not who they said they are), then to get that revised decision further revised would require an application for revision to be made within the normal time limits for an ‘any grounds’ revision.

A Stavert
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I had my first tribunal (phone hearing) on this issue yesterday.  Needless to say the suspension / termination process had not been followed and no grounds whatsoever had been given for ‘closing’ the claim from its original date. 

There was a PO.  When asked to comment on my six page submission detailing the law and processes that should have been followed he merely stated ‘I’m not here to answer questions on the law.  The Department’s view remains….’

I’ll let you know the outcome once I get the result.

Paul_Treloar_AgeUK
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A Stavert - 27 October 2021 09:22 AM

I had my first tribunal (phone hearing) on this issue yesterday.  Needless to say the suspension / termination process had not been followed and no grounds whatsoever had been given for ‘closing’ the claim from its original date. 

There was a PO.  When asked to comment on my six page submission detailing the law and processes that should have been followed he merely stated ‘I’m not here to answer questions on the law.  The Department’s view remains….’

I’ll let you know the outcome once I get the result.

I’m not hear to answer questions on the law…

Well why are you there then? Give me strength…..

Mr Finch
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This is why I wish tribunals would/could quash decisons that are on their face hopelessly flawed, instead of painstakingly investigating whether to revise or supersede themselves. The current system creates a perverse incentive to make decisions as flawed as possible.

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A Stavert - 27 October 2021 09:22 AM

I had my first tribunal (phone hearing) on this issue yesterday.  Needless to say the suspension / termination process had not been followed and no grounds whatsoever had been given for ‘closing’ the claim from its original date. 

There was a PO.  When asked to comment on my six page submission detailing the law and processes that should have been followed he merely stated ‘I’m not here to answer questions on the law.  The Department’s view remains….’

I’ll let you know the outcome once I get the result.

Would you be able to DM me claimant details on that one - it would be a great example to send them

A Stavert
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Appeal successful, disputed decision set aside.  The only reason given by the tribunal was that the appellant had not failed to provide any information requested. 

This was a point I hadn’t even argued, mainly because in my opinion it was irrelevant.

No doubt a SOR will be requested.

Benny Fitzpatrick
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Paul_Treloar_AgeUK - 27 October 2021 12:08 PM
A Stavert - 27 October 2021 09:22 AM

I had my first tribunal (phone hearing) on this issue yesterday.  Needless to say the suspension / termination process had not been followed and no grounds whatsoever had been given for ‘closing’ the claim from its original date. 

There was a PO.  When asked to comment on my six page submission detailing the law and processes that should have been followed he merely stated ‘I’m not here to answer questions on the law.  The Department’s view remains….’

I’ll let you know the outcome once I get the result.

I’m not hear to answer questions on the law…

Well why are you there then? Give me strength…..

To defend the department’s (indefensible) argument at all costs, Law be damned?

Andrew Dutton
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Update on the case I mentioned.
Claimant was asked to bring in:
- 3 forms of ID (one photo, passport or driving licence)
- CT bills
- Utility bills
- Letter from landlord/agent showing property address, landlord/agent address, what rent payable and when, signatures of tenant and landlord/agent

Staff didn’t seem to know where to send the information provided as the UC claim was closed. Decided it would go straight to a DM. It remains to be seen who closed the claim and when.

Claimant awaiting decision – meanwhile 20% of wages still being taken.

Daphne
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Hi Andrew - if you were able to DM me a NIno, name and postcode that would be great - thanks

Elliot Kent
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Some further media coverage here including a case in which my colleague Sophie Earnshaw and I acted.

https://inews.co.uk/news/universal-credit-payback-department-work-pensions-1277088

[ Edited: 2 Nov 2021 at 07:55 pm by Elliot Kent ]
Claire H
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Hello all

CPAG have created a judicial review pre-action protocol template letter for adviser use in cases where:
1) Request for information/evidence was a request for ID documents
2) Award has been ‘closed’ and overpayment generated for total amount of UC received for duration of the award following failure to provide requested information
3) No suspension of payment of benefit was put in place prior to the award ‘closure’.

The template would be best used in circumstances where MR has already been requested but there has been a substantial delay in DWP providing a response and/or an appeal has been lodged and is pending but enforcement of recovery of the overpayment is being progressed anyway in the meantime and this is causing hardship or distress.

Before resorting to a pre-action letter claimants should still take steps to:
1. ‘print to PDF’ whatever they can still access of their journal as soon as possible
2. once step 1 is completed, reclaim UC
3. provide whatever evidence they were asked for that has resulted in the award closure (via journal if possible or otherwise as part of MR request – see below)
4. submit MR request of the overpayment decision
5. lodge appeals

The template is available at: https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/claim-closure-uc
The letter could potentially be adapted for slightly different situations – please get in touch via .(JavaScript must be enabled to view this email address) if you need assistance adapting the letter and we would also be interested to receive feedback on responses you receive.

We would also welcome submissions to the Early Warning System (https://cpag.org.uk/policy-campaigns/early-warning-system) to help us gather evidence of the ‘retrospective verification’ exercise. We are particularly interested to hear from anyone with a client whose award was closed because they failed to provide a ‘selfie’ or where mental health conditions or support needs contributed to the failure to provide the requested evidence but all submissions are welcome.

In cases where journal access is no longer possible following a claim ‘closure’ and it’s difficult to work out the timeline of events and communications, it may be helpful to submit a Subject Access Request (http://www.gov.uk/guidance/request-your-personal-information-from-the-department-for-work-and-pensions), although responses will take around a month to be returned – if submitting a SAR for a joint claim, ensure to send a request for both people on the claim to avoid getting a redacted response.

Daphne - I will ask my clients whether they are happy for their details to be shared and will be in touch if so.

Daphne
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Request for case studies for claimants affected by this issue for Moneybox this Saturday -

Money Box on BBC Radio 4 is looking for case studies of claimants who have been affected by the Dept of Work & Pensions retrospective identity verification for Universal Credit – clawback of previously paid UC, direct earnings attachment, etc.

We’d like to speak to people to hear their story of what’s happened to them with a view to arranging an audio interview on Friday 12th November or before 10am this Saturday 13th November.

We will not need to broadcast the full identity of whoever we interview, just first name or, if necessary, an alias will be fine.

The programme will be broadcast at midday on Saturday. Please contact Money Box producer Paul Waters at .(JavaScript must be enabled to view this email address) or 07947 117599.

Ianb
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Daphne
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A further reply from DWP attached - I particularly note this paragraph -

Of course, at each stage of the process it is incumbent on the department to notify the claimant of its actions,  what it expects in return and what the consequences will be for a failure to comply. And ultimately if a claim is closed then a decision must be notified with MR and appeal rights; and the same must apply to any subsequent overpayment decision. In UC this would be done through the claimant’s journal. A failure to notify appeal rights is unlawful - although they can of course be issued at any time with the right still extant.

This would seem to be the bit that isn’t happening!

 

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Daphne - 17 November 2021 12:48 PM

A further reply from DWP attached - I particularly note this paragraph -

... In UC this would be done through the claimant’s journal. ..

Which really doesn’t address the problem of claimants who are no longer receiving UC and therefore have no reason to check their journal (unless the DWP are also sending them text messages advising them to do so).

Daphne
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Indeed - and I have gone back to them to point that out!

Timothy Seaside
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I would add that even if they are getting a text message telling them there’s a message for them in their journal, if they know their UC has stopped and they are no longer entitled, then they may well decide there is no point in logging in because they know the claim has ended.

The whole thing is just so wrong - it’s lazy and it’s unlawful and it seems to me it’s all being done for show so the DWP can say they are doing something about the increased levels of UC fraud during Covid. But instead of going after the fraudsters, they are picking on people who have gone back to work (a cynic might suggest this is because they know they’ll get money back from their pay packets - although I wonder if they’ve even thought that far ahead).

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Thank for this very helpful thread!  I’ve just had my first retrospective verification case.  Unbeknown to the appointee (my client), her son had claimed UC at the beginning of the first lockdown on the advice of his ‘friend’.  My client learned about the existence of this UC claim this month when Debt Mgt wrote to her about a large o/p.  I’ve now got access to his journal and seen that it was another ID verification failure.  It doesn’t look like he ever went back into the UC account and he didn’t respond to any of the calls or journal messages. There was no effort to contact the appointee and the claimant was already in receipt of PIP (where identity would have been verified).  Drafting the MR

UB40
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Hi JPCHC, It looks as if the UC claim is ” defective ” on the grounds of mental capacity. This would be the case if your client was officially designated ” appointee ” by the DWP. Your client should be listed as appointee on the Relationships screen on DWP CIS ( some call it Searchlight ). Hopefully this is so and therefore the DWP are satisfied that your client’s son does not have the mental capacity to make a Benefit claim. In all cases the appointee must act on his behalf. If the claim is defective so is the debt.

............Extract from Decision Makers Guide 02623…. It is the claimant’s responsibility to claim unless there is an appointee. Claimants with personal
good cause, are not affected by the delay of someone who makes a claim on their behalf, unless that
person is the appointee1
. From the date of appointment the actions and inaction of an appointee are treated as those of the claimant and it is the appointee who has to show good cause.
.
1 R(SB) 17/83; R(SB) 9/84; 2 R(S) 2/51; R(P) 1/56; R(A) 2/81; R(SB) 17/83; R(SB) 9/84; R(P) 2/85

[ Edited: 29 Nov 2021 at 06:50 pm by UB40 ]

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JPCHC
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UB40 - 29 November 2021 06:33 PM

Hi JPCHC, It looks as if the UC claim is ” defective ” on the grounds of mental capacity. This would be the case if your client was officially designated ” appointee ” by the DWP. Your client should be listed as appointee on the Relationships screen on DWP CIS ( some call it Searchlight ). Hopefully this is so and therefore the DWP are satisfied that your client’s son does not have the mental capacity to make a Benefit claim. In all cases the appointee must act on his behalf. If the claim is defective so is the debt.

............Extract from Decision Makers Guide 02623…. It is the claimant’s responsibility to claim unless there is an appointee. Claimants with personal
good cause, are not affected by the delay of someone who makes a claim on their behalf, unless that
person is the appointee1
. From the date of appointment the actions and inaction of an appointee are treated as those of the claimant and it is the appointee who has to show good cause.
.
1 R(SB) 17/83; R(SB) 9/84; 2 R(S) 2/51; R(P) 1/56; R(A) 2/81; R(SB) 17/83; R(SB) 9/84; R(P) 2/85

Thank you for this helpful information.  My client is the appointee for the PIP claim.  I read on here about UC having a separate, standalone process.  If he has an appointee for his PIP claim would the UC claim be defective?  Thanks

UB40
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I am not familiar with the ” appointee ” process with PIP so cannot answer that question. Also did the son input the information or did his friend do it for him? It appears that the son has some mental capacity issues so the DWP would need to make reasonable adjustments under the Equality Act 2010. May be a good idea to get his GP or other clinician to complete a DMHEF to present to the DWP.

https://www.businessdebtline.org/documents/debt_and_mental_health_evidence_form_DMHEF_pack_with_instructions_BDL_EW.pdf

Jo_Smith
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This retro verification horror show just rumbles on.
In just 2 last days: £27K “overpayment” letter for a disabled client. Claim closed. No decision notice issued. A note on the system (internal, because client has no Journal, she has a phone claim). Note says: claimant is not eligible. THAT IS IT. Called DWP. Poor inexperienced, untrained subcontractor utterly unable to deal with it. Refused to register request for WSOR or MR. Put us on hold and then…terminated the call.
Client is frantic- no money for Christmas. Apparently (because it is all guesswork at this point) it is because client was getting SDP when she claimed UC.
(She wasn’t, but this is the idea ventured by the clueless case manager…)

Another one- “overpayment” of 16K. Apparently because kids are FT students who live away during term time, thus, accordingly to whoever who did NO investigation, they are not entitled to their own bedrooms. Whoopsie, goes the whole housing costs element.

Things are VERY VERY bad in UC -land.

Peter Turville
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DWP response to FOI request:

https://www.whatdotheyknow.com/request/803925/response/1926896/attach/3/Response%2089953.pdf?cookie_passthrough=1

This repeats information previously provided by DWP.

However, DWP have yet to explain how a claimant is supposed to know ‘closure’ is a legally valid decision against which they have a right of appeal (subject to MR) if they have not been issued with any form of decision notice. Or, put another way, why DWP are not complying with the procedure/action they state is/should be happening in these cases - “.... it will be a decision carrying MR and appeal rights, which are attached to notices informing claimants that their UC claim has been closed”.

Leaving aside the difficulty of making an MR when a claim has been closed!