Benefit cap, Grace Period
We have a client who has had the benefit cap applied to his UC, but we feel should benefit from the grace period.
UC say that he did not, at the time he claimed UC, notify them of his previous 12 months income.
He was in receipt of UC, and working above the threshold for sometime, lost some earnings and became subject to the cap, so the grace period should apply from the 1st AP that his earnings dipped.
I cannot find anything to support what UC have decided save for this:
You need to report your last 12 months’ earnings when you apply for Universal Credit to get the grace period.
Guidance and the Regs make no reference to this though?
(3) The condition is that, in each of the 12 months immediately preceding that day, the claimant’s earned income or, if the claimant was a member of a couple, the couple’s combined earned income was equal to or [F5exceeded—
F6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)F7…the amount calculated in accordance with paragraph (1)(a).]
DMG makes no reference to the need to report either
Grace period E5052 A grace period is a period of 9 consecutive months which begins on the most recent of 1. a day falling within the current period of entitlement to UC which is the first day of an assessment period in which 1.1 the claimant’s earned income or 1.2 the couple’s combined earned income (if the claimant is a member of a couple) less than the amount calculated in E50511 2. a day falling before the current period of entitlement to UC which is the day after a day on which the claimant has ceased paid work2 in respect of which E5053 applies. 1 UC Regs, reg 82(2)(a); reg 82(2)(b) E5053 E5052 applies where, in each of the 12 months immediately preceding the day in E5052 1. or 2. 1. the claimant’s earned income or 2. the couple’s combined earned income (if the claimant was a member of a couple) was equal to or exceeded the amount calculated in E50511
We have told the client to ask for an MR of the assessment of his earnings, as he cannot MR the decision to apply the ben cap.
I’d appreciate any thoughts
Thanks in advance.
Whether the earnings were reported at the time is irrelevant provided they existed.
There is an interesting point raised in this case because you say:
“We have told the client to ask for an MR of the assessment of his earnings, as he cannot MR the decision to apply the ben cap.”
This is not a very accurate summary of the law. The legislation says that a decision “to apply the benefit cap” is not appealable. There is some ambiguity as to what that means exactly because it is hard to imagine that the intention was to bring questions about whether a person, for example, satisfied the grace period rules outside the scope of the FtT’s jurisdiction.
However the flipside of a decision not being appealable is that the claimant always has an unlimited right to seek any time revision of that decision - see reg 10 D&A Regs 2013. So to say that you can’t ask for revision of the decision because it cannot be appealed is wholly wrong.
Either the decision is appealable and can be challenged through the usual any grounds route, or the decision is not appealable and can be challenged on the any time route - either way they have to consider the revision request. If you can demonstrate that the client did in fact satisfy the grace period rules, the decision ought to be revised irrespective of whether the information was disclosed at the time.
We say that about MR point, as we find that it comes up time and again unless you are very clear, when making an MR, that they just bat it back and say that cannot MR ben cap decisions - so we suggest to clients to be clear that this MR is a dispute about how they assessed the previous earnings, not applied grace period etc as it saves time.[ Edited: 15 Apr 2021 at 10:50 am by roecab ]