Disabled Child Element
I am working with a claimant who accidently ticked the wrong box when making her UC claim. She ticked that her son was not getting the care component of DLA when in fact he was getting the high rate.
UC are asking her to declare this as a change of circumstances, and I can see that they will argue that they cannot backdate the element.
My question is what verification do UC do? Surely they do not just accept that the child was getting DLA without checking, and if they checked shouldn’t they have realised that he was getting the care component?
On the same claim they are also arguing about the carers element. They are saying that she needs to declare a change of circumstances that she is now caring for her son, despite the fact that they have been taking carers allowance into account as income since the start of her claim.
I’m also concerned that she has put notes about this on her journal several months ago, but they are saying that until she puts the information under a different tab they won’t look at it….surely that wouldn’t hold up at any tribunal??
I think this is so much rubbish from UC.
Surely this can be treated as an any time revision, either within a month of the decision (or possibly not even that if still within her first AP so hasn’t had a decision?) or 13 months with reasons given for lateness.
As for the carer’s element, clearly she was a carer getting carer’s allowance from the beginning so they had the evidence that reg 29 UC Regs applied all along.
She can put the information on the to dos or wherever it is UC are asking her to put it, and perhaps that is required for the software, but legally I suspect you are right & she could argue she has already told them. I’d insist on that backdating & challenge if necessary.
Depending on whether you have passed that first decision date though (ie on her first AP), and whether it is already a month since then, it would be a good idea to make it clear she’s asking for an extension of time to provide this correction to her details (ie rate of son’s DLA) & seek a revision going back to the beginning. I suppose it is possible it wasn’t clear who she was caring for, but that doesn’t stop her being entitled all along.[ Edited: 25 Feb 2021 at 09:48 am by WillH ]
Under paragraph 31 of schedule 1 of the UC, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013, a change of circumstances takes effect from the date on which it occurred (not when it was reported), where that change is receipt of a relevant benefit (the relevant benefits in this case are CA and DLA). The relevant provision is set out below:
31.—(1) This paragraph applies in relation to an award of personal independence payment or universal credit where the change of circumstances is that the claimant or, in the case of universal credit, a member of their family, becomes entitled to another relevant benefit, ceases so to be entitled or the rate of another such benefit alters.
(2) Where this paragraph applies, the superseding decision takes effect from—
(a)where the superseding decision concerns universal credit, the first day of the assessment period in which—
(i)the entitlement to the other benefit arises;
(ii)the entitlement to the other benefit ends; or
(iii)entitlement to a different rate of the other benefit arises;
This seems to be a common issue - the DWP insisting that a formal declaration of a change in circs needs to be made, and then arguing that the change can only take effect from the assessment period in which it was reported. That clearly is the correct approach for some changes (subject to the provisions that allow late reporting etc.), but not when the change in question is receipt of a ‘relevant benefit’, as per the above reg.
Best of luck.
I suspect DWP requesting client report this issue as a change of circumstances is, at least in part, an issue with the IT. We have seen clients advised to report similar errors / mistakes (ie incorrect rent figure) as a COC. Because the original mistake is recorded as ‘fact’ on the system there is no procedural mechanism (human intervention / common sense), or at least anyone who understands how to do so in practice if there is, that allows the mistake to be corrected - so the ‘work around’ is to report as a COC. Depending on how soon the mistake is reported (as a COC) can then lead to the potential issues around ‘backdating’ raised by Will. We have had to take cases to MR or tribunal to get an obvious error corrected and additional entitlement due ‘backdated’.