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backdating elements on UC

Peter Donohue
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Salford Welfare Rights

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anyone any ideas on the following? (I have but would appreciate any input or experience)......

client completes a DLA claim for 7yo son in December…gets DLA HRC for him by decision in February and the DLA is backdated to November (ie when she registered and obtained the forms) 

she has been on UC throughout…....
also then claims CA recently (for caring for same son) and asks for routine backdate of 3 months…......eventually she gets the CA and a backdate of around £1400 (presumably the 3 months CA plus the several weeks adjudicating it until its eventually put in payment.

I recently see her UC breakdown and notice that the UC is deducting the CA now paid to her but (yet again in my experience) no Carer element is paid. I advised to place entry on journal re this and UC comes back and says that she may be overpaid UC (ie the CA backdate etc) ....this might be correct and the clt has of course had the benefit of the CA and backdated amount itself ..so no gain/no loss as it were….but she has NOT had any Carer element at the same time over the same period and UC saying they don’t have to pay as she didn’t report it as a coc…...
obvious issue is how could she report a coc (the successful claim AND backdate of CA until the CA made its decision???(she couldn’t know they would award it and backdate it ...could she?)

Making matters worse, I then also noticed that no disabled child element is being paid (she should get higher DCE of course) and so advise her to again put in the journal and ask for backdate to November.

Eventually UC seem to agree she should get a DCE but not a backdate as she never notified of the COC…again how can she know that she would get DLA at all, never mind from what date or at what rate???

anyone else come across this or similar????

Va1der
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I think it is covered under Sch. 1 of the UC(DA) regs - reg. 31.

In the last couple of cases I’ve had this worked out in the claimants favour, with relatively little resistance from DWP.
If I recall, there is a section of the DMG that states specifically that backdated Carer Element should be used to offset any overpayment due to backdated CA - indicating that DWP recognises this standpoint.

EDIT: Noticed you mentioned 3 month backdate of CA - It should be backdated to the date of the qualifying benefit, provided she claimed within 3 months of the decision to award DLA.

[ Edited: 5 May 2021 at 04:45 pm by Va1der ]
Peter Donohue
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Salford Welfare Rights

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hi thanks…the CA was more than 3 months ...it was to the date of DLA starting (just used 3m as an estimate) ....it is the backdate of DCE which is more concerning though

HarlowAC
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Harlow Advice Centre

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I agree with Va1der.
This seems to be quite a common problem and the DWP generally backdown on it. It is not an issue of backdating. It is a supersession following the award of DLA.

Va1der
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So you can point them to their own guidance, I dug up of the ADM chapters that deals with this (though not the one I was thinking of above): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/968051/adma4-10-03-21.pdf

“A4220 In the case of UC where the claimant or a member of their family becomes entitled to another relevant benefit, ceases to be entitled or the rate of another such benefit alters then the superseding decision takes effect1 from the first day of the assessment period in which entitlement to the other benefit or an alteration in it’s rate arises or entitlement ends. “

I don’t know why there is a specific reference to ‘family member’. I don’t see the policy intention of why the regs wouldn’t allow for a backdated Carer Element if they were caring for someone outside the family. Maybe I’m missing something. (Of course this doesn’t apply to your case in any event.)

As far as the disabled child element goes, neither the ADM nor the regs are made with specific reference to the carer element, but set out the rules for supersessions in general, so should apply equally to the DCE.

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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The issue for carers seems to be that if they claim CA and it is backdated it is clear that UC should be superceded to include carer element in earlier APs. If however claimant simply reports that they care for someone who has now been awarded a relevant disability benefit UC will not look again at earlier APs unless claimant had previously advised them that they were caring. Claimant can of course overcome this by claiming CA provided they are not excluded due to earnings.

HarlowAC
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Ianb - 06 May 2021 02:13 PM

The issue for carers seems to be that if they claim CA and it is backdated it is clear that UC should be superceded to include carer element in earlier APs. If however claimant simply reports that they care for someone who has now been awarded a relevant disability benefit UC will not look again at earlier APs unless claimant had previously advised them that they were caring. Claimant can of course overcome this by claiming CA provided they are not excluded due to earnings.

I think that, in this scenario, it could be argued that the carer element should be backdated to the date that PIP/DLA was awarded on the grounds that there is good cause for late notification of being a carer. Prior to the award of PIP/DLA there would be no point in declaring oneself to be a carer as it would have no material affect on the award. It only becomes relevant once the PIP/DLA is awarded. Worth a try.

Ianb
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HarlowAC - 06 May 2021 02:29 PM

I think that, in this scenario, it could be argued that the carer element should be backdated to the date that PIP/DLA was awarded on the grounds that there is good cause for late notification of being a carer. Prior to the award of PIP/DLA there would be no point in declaring oneself to be a carer as it would have no material affect on the award. It only becomes relevant once the PIP/DLA is awarded. Worth a try.

I agree with the argument but it can be hard work to get DWP to see that way. There can of course be advantages to declaring carer responsibilities even if the cared for doesn’t receive a disability benefit in that any work related requirements may be reduced.

[ Edited: 6 May 2021 at 03:05 pm by Ianb ]
Peter Donohue
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thanks all ......all makes sense and seems supported by the law (have come across the carers scenario previously but has ever been a problem before) but DWP and sense (once again) do not seem to be cosy bedfellows…....I was aware of reg 31 but not the DMG/ADM chapters/citations…..anyhow…many thanks ...we have thrown it at them and will see what emerges