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Very confused advice re: claiming UC or not

ZoeHBF
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Welfare and Housing, Helen Bamber Foundation (London)

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Hi everyone, we’re running round in circles trying to find some in some way definitive advice on whether our client should be claiming UC for a change of circumstances, and we’ve had different pieces of advice from 2x calls to the Citizens Advice Help to Claim advice line, 2x calls to Universal Credit and 1x to ESA!

Our client right now lives in temporary homeless accommodation with her husband and adult son. She receives ESA (couples rate and is in the support group), PIP (standard daily living component if relevant) and HB (although slightly reduced due to non-dependent adult, her son, living with them). Her husband receives Carer’s Allowance on the basis of her PIP award. Late last week, she was told she is being given non-temporary accommodation via a housing association within the same borough.

I presumed she would have to claim UC despite the significant disruption this would cause to her finances (ESA and HB stopping), as because she is no longer to be living in T/A, she can’t change her HB claim to a non-temporary tenancy even though in the same borough, but wasn’t sure. We sought advice from the CAB’s Help to Claim advice line who advised that she needs to claim UC in order to pay for her housing costs, due to the change in circumstances being change of address and tenancy. Following this advice, the claim was submitted on Wednesday.

We called the CAB’s HTC line again today to check whether her receipt of ESA in the support group would be transferred within UC (as in, in case she can automatically be deemed as having LCWRA under UC due to her receipt of ESA in the SG and so that she does not have to keep submitting medical certificates and go through the whole work capability assessment all over again. On this second call, we were advised by the CAB that she actually did not need to claim UC in the first place, as the move was within the same borough and so her HB claim could just be transferred.

Our client would like to somehow withdraw her UC claim if at all possible for obvious reasons. We were first told by the CAB that this would be impossible because the claim has been submitted. We called UC who gave conflicting/uncertain advice on this, and who then advised us to call ESA if it would be possible - ESA said it would be possible to withdraw her UC claim “as there has been no register of UC interest on her ESA account and there is a 7 day ‘cooling off period’ where UC is processed - she just needs to withdraw the claim via writing on her journal”.

So we’re pretty confused at this point!

1) Did she truly need to claim UC in the first place?
2) If not, is there anyway that this claim for UC can be cancelled/withdrawn and she continue to receive ESA and HB, as long as it is done within this 7 day ‘cooling off period’ as mentioned by ESA?
3) If the client is required to claim UC, is it possible to argue that she should be immediately treated as having LCWRA, rather than undergoing the work capability assessment again?

Thank you very much for anyone’s advice on this advance, it’s boggling me a bit!

Elliot Kent
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1) No. The HB award could have remained in place despite the change of address as it is within the LA area. The fact that she is going from temp to non-temp is a red herring. The scenario where this would be relevant is where the claimant is already getting UC but also gets HB because they are in temp - they can’t stick with HB when they move into permanent housing, it just gets rolled into UC.

2) Unclear. When a claim for UC is made, a “stop notice” is sent to HB. The “stop notice” permanently kills any HB entitlement. Whilst it would perhaps be open to her to withdraw the claim for UC, if the stop notice has already been sent off (which happens at a very early stage) it will be too late to save her ESA and HB. It would be rather risky to withdraw the UC claim now in the hopes of staying on legacy as she could lose both.

3) Yes. Her LCWRA assessment should automatically carry over onto UC and the LCWRA element should be payable from the beginning with no WCA and no fit notes. This is the effect of reg 19 of the UC (Transitional Provisions) Regs 2013.

I haven’t done the sums, but I think there is a fair chance that she will be better off on UC anyway. This is due to the Covid-uplift and the LCWRA element being higher than the support component + EDP. Her non-dependent son is a factor that could go either way as the rules for non-dependent deductions are significantly different on UC.

[ Edited: 25 Mar 2021 at 10:29 pm by Elliot Kent ]
Helen Rogers
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An extra point - there shouldn’t have been a non-dep deduction on the HB as claimant is on daily living component of PIP.  I would expect HB to pay this underpayment if it’s pointed out to them now.

Timothy Seaside
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Another extra point is that she should still do a change of address form for HB because she will be entitled to the two week run on (as well as in ESA).

Edit: I’ve just noticed that you’re saying she’s still in TA? So she’ll only need to do the COA if she moves within two weeks of claiming UC - otherwise she’s missed out on that little bonus. But she will still get a full month of UC housing costs element at the new rent level, so as long as she moves and notifies the change within the first assessment period there will effectively be at least two weeks of HB/HCE overlap.

[ Edited: 26 Mar 2021 at 10:05 am by Timothy Seaside ]
Lisa Reid
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Elliot Kent - 25 March 2021 10:27 PM

1) No. The HB award could have remained in place despite the change of address as it is within the LA area. The fact that she is going from temp to non-temp is a red herring. The scenario where this would be relevant is where the claimant is already getting UC but also gets HB because they are in temp - they can’t stick with HB when they move into permanent housing, it just gets rolled into UC.

 

Hi,

Elliot in relation to your first point do you have any guidance/regs on this? Our LA has informed me today they won’t accept HB claim in these same circumstances. Client has current temporary accommodation HB claim and receives CTC and WTC she has moved to a housing association property in same LA. They have advised me my client needs to apply for UC.

Thanks,

Lisa

Timothy Seaside
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I’m not sure about guidance, but the issue here is that there is already a HB claim; this is not a new claim.

A new claim for HB would be impossible (as per the Commencement Orders). And anybody who is entitled to UC cannot be entitled to HB except in specified circumstances like TA (as per Reg 5 of the UC (TP) Regs), so their HB would stop if they moved into permanent accommodation.

But the case you are describing is not a new claim for HB, and the person is not entitled to UC.

I think I would be asking the local authority why they don’t think a HB claim can continue in these circumstances so that you know what you are disagreeing about. You say they would not accept a claim for HB; which is correct. But would they accept a change of address on an existing claim?

Lisa Reid
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Thanks Timothy.

It was a change of address. I asked them for their guidance and they have sent me this - https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2018/a72018-universal-credit-full-service-areas-guidance-for-local-authorities - which they have advised me means the client needs to apply to UC. I cannot see how they have reached this view.

HB Anorak
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Lisa Reid - 29 March 2021 03:33 PM

Thanks Timothy.

It was a change of address. I asked them for their guidance and they have sent me this - https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2018/a72018-universal-credit-full-service-areas-guidance-for-local-authorities - which they have advised me means the client needs to apply to UC. I cannot see how they have reached this view.

Well, I mean, literally from that very document:

9. If an existing HB claimant moves home within the same LA area, a new HB claim is not required and LAs may continue to award HB based upon the change of circumstances. A claim to UC is not needed if the claimant moves house within the same LA area.

Timothy Seaside
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Like some other people on here, I never tire of pointing out that there is no situation where a person has to claim UC; there are situations where they can’t make new claims for other benefits, but there’s still an element of choice. This isn’t just pedantry; it really matters in some (e.g. potential benefit cap) cases. But that aside, I think you’re absolutely correct that there’s nothing in that guidance to suggest your client’s HB claim can’t continue (and frankly it would be remarkable if the guidance made such a mistake).

You could ask the LA exactly what part of the guidance they’re referring to - that might help them to realise that there’s nothing in it to support what they’re saying. You could point them to paragraph 9 which confirms that a claim to UC is “not needed”.

Of course, it’s always possible that she’ll be happier on UC, but in that case you want to make sure she gets the two week HB run on.

Lisa Reid
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Thank you both for your advice and confirming our view. We have responded to the team regarding the guidance they sent us and hoping we have a positive resolution soon.

Lisa

Jon (CHDCA)
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Elliot Kent - 25 March 2021 10:27 PM

The scenario where this would be relevant is where the claimant is already getting UC but also gets HB because they are in temp - they can’t stick with HB when they move into permanent housing, it just gets rolled into UC.

Just checking this scenario, is it really not possible to choose to remain on HB when moving into a regular tenancy? Client has existing UC, moving in the same district, council are taking a change of circumstances rather than advising to get the housing element of UC in place.

Charles
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Not unless they close their UC claim first. See Reg. 5(1) of the UC (TP) Regs.

Jon (CHDCA)
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Excellent, thanks Charles.