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Bereavement Support for cohabitees

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Paul Stockton
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The actual draft order hasn’t been laid yet. All we’ve had so far is the proposed draft order. Parliament is about to go into recess so the earliest date the order could be laid is when Parliament comes back on 5 September. The order has to be debated and approved by both Houses of Parliament but there has to be at least 60 days before the order is debated. Periods when Parliament isn’t sitting doesn’t count towards the 60 days so realistically it’s highly unlikely we’ll get the order this year.

Pippa
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Should we be advising people to make the claim and be refused then MR and wait….
Or does the fact that it states claims will be backdated from 30/08/2018 mean that when it comes in ( September 2022?) to then apply and not make any claim yet?

Paul Stockton
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It seems to me (and earlier posts in this thread say the same) that there is no point in claiming until the draft order is approved by parliament and brought into force. Any claim can be backdated to 2018 and people will have 12 months from the order coming into force to make a claim, assuming the final version of the order says the same as the draft already proposed.

[ Edited: 26 Jul 2022 at 09:26 am by Paul Stockton ]
Ros
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In a letter to the Work and Pensions Committee and the Joint Committee on Human Rights dated 22 July 2022 Baroness Stedman-Scott confirms that DWP officials are working through a number of ‘complex policy, drafting and implementation issues that require careful consideration’, and that therefore the government has not been in a position to lay the Order by the start of summer recess.

Paul Stockton
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The Minister’s letter is a fine collection of established excuses for why something that really should have been done years ago still hasn’t happened. Here are some of the phrases from the letter with what they really mean.

“As part of the process of finalising the Order, my officials are working through a
number of complex policy, drafting and implementation issues.” The civil service has plenty of people who have spent their careers sorting out exactly this kind of thing. If it’s taking a long time that’s an indication that it’s not a priority, not that it is unduly difficult.

“this issue remains an absolute priority for this department”  There are three levels of priority in government: in descending order: top, high, and absolute. Nothing is ever a low priority.

“my officials are working at pace…”  The phrase “at pace” means it’s not urgent, we don’t have a timetable for it, but we haven’t actually stopped work on it.

“... to lay the Order as soon after the return to Parliament as progress and parliamentary time
will allow.” The refence to “parliamentary time” is a red herring. The Order can be laid any time Parliament is sitting. Getting a slot for debates from the parliamentary business managers is only an issue once the 60 day consultation period is up.

Stainsby
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I have a client who has a terminal illness

Her partner died recently

I have just done her MR against the refusal of her claim. 

Her claim has to be made now for obvious reasons

Its now over 4 years since the judgement and we are still discussing the proposed remedial order

[ Edited: 5 Dec 2022 at 02:38 pm by Stainsby ]
Daphne
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Paul Stockton
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This means that the Joint Committee on Human Rights have cleared the amended draft order but as I understand the convoluted parliamentary procedure the draft order as amended now has to be laid before Parliament again. There is then a 60-day wait before it can be approved by each House. Then the Secretary of State can make the order and it comes into force the next day. The 60 day period does not include any parliamentary recess over 4 days long so in reality it is likely to be March 2023 at the earliest before this is in force.

Daphne
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In the words of Brenda from Bristol (in respect of 60 day wait) - ‘Not another one!!!’

Daphne
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Daphne
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As I understand it via communications from CPAG Scotland - backdated payments of widowed parent’s allowance and BSP will be offset against any means-tested payments received during the relevant retrospective period (no mention of this on gov.uk or other communications I have seen).

Where it’s a legacy benefit, it will reduce the backpayment made, but if the claimant was on UC then it will create an overpayment due to the failure to offset!! (Obviously not an issue where it’s backdated BSP as disregarded for purposes of UC)

I am emailing DWP to clarify their communications…

In addition Jan 23 minutes from tax credits consultation forum indicate that backpayments of WPA will be taken into account as income in the year they’re received for tax credits! - https://www.gov.uk/government/groups/tax-credit-consultation-forum#minutes

[ Edited: 1 Mar 2023 at 03:36 pm by Daphne ]
Daphne
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a correction to above - it has been pointed out to me that para 7.15 of the explanatory memorandum to the regs makes it clear that the payments will be treated as capital -

7.15 For Universal Credit (UC), WPA is considered in full as income, with a £10 disregard applied for most legacy benefits except for Housing Benefit which is £15. These legacy benefits are income-related Employment and Support Allowance (ESA), income-based Jobseeker’s Allowance (JSA), Income Support (IS), Pension Credit (PC) and Housing Benefit (HB). Retrospective payments of WPA will be assessed at the point of award for these income-related benefits; but given the size of these payments, some claimants could lose all entitlement to income-related benefits and passported benefits such as free school meals. This Order therefore provides for all retrospective WPA payments up to the date of claim, to be treated as capital and disregarded for a period of 12 months or 52 weeks in UC, ESA, JSA, IS, PC and HB. This Order also introduces a disregard for the same period for retrospective BSP payments made under the order. The usual rules will apply to future BSP and WPA entitlements.

I’m going back to the DWP again…

Daphne
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Following some very helpful conversations with CPAG Scotland, they have explained to me that payments of WPA will be offset against legacy means-tested benefits, or create a UC overpayment. I cut and paste their explanation below. There is no issue with BSP as that is disregarded for means-tested benefits but there is an unresolved issue with HB -

This was the reply received yesterday from DWP:

‘WPA retrospective payments are treated as capital and disregarded for 12 months from the date of payment. This disregard is for the income-related benefits (including Universal Credit) that people are currently getting, this ensures that their payments/income going forward are not affected and they get the benefit of the capital disregard for a year. However, where a claimant was in receipt of a legacy income-related benefit during the period of entitlement for WPA (in other words, a past period), we will offset any overpayment of the relevant benefit from the retrospective lump sum of WPA and pay a net WPA award. Where a claimant was in receipt of Universal Credit during the past period of WPA entitlement, the claimant may incur an overpayment of Universal Credit as a consequence of receiving a retrospective WPA award. This is to ensure that cohabitees are not treated more generously than their married counterparts who would also have their awards reduced in this way.’

I have discussed this with colleagues and we think this is correct because the Remedial Order (RO) and the law does allow DWP to deduct means-tested benefits from WPA, either by offsetting against legacy benefits or creating overpayments of UC.  That is because although the RO treats arrears of WPA as capital, there is nothing in the amendments to the various regulations in the Schedule to the RO to require such retrospective payments to be treated as capital. The amendments merely provide for the payments to be disregarded as capital, which would only have an impact in so far as the payment or the remaining balance of the amount of the payment is properly to be characterised as capital rather than income. As you know, if someone is awarded benefit arrears they are not treated as capital, instead they are treated as late paid income ie they retain their original character – had they been paid on time they would be income. This means MTBs already paid for a past period can reduce the amount of WPA paid. The key point is that WPA arrears are treated as late paid income for a past period and may lead to offsetting or overpayments, depending on the benefit. It is only any remaining arrears after they have been offset which are treated as capital and ignored. If someone got UC, as they will get the full amount of WPA but instead they’ll have an overpayment of UC, presumably arrears in that situation are also disregarded (if that’s not the case, I’ll let you know). Claimants probably shouldn’t spend the arrears though because they’ll need to repay the overpayment. If they don’t pay it off in one go it will be deducted from their UC.

There’s also the issue about HB. WPA can’t be offset against HB but overpayments are a possibility. But those who retained passported entitlement ie via still being entitled to IS etc during the arrears period will remain entitled to max HB - as the passport really means they are treated as having nil income and capital. It will be good advice for claimants to tell the local authority in order to make sure that they have fulfilled their duty to declare what they have been told they must declare or what they could otherwise reasonably be expected to know that they should. Also, given the possibility of overpayments claimants should let DWP know that they were getting HB. DWP haven’t said what they plan to do about HB/CTR, I will ask and let you know.

Thank you to both Frances and Simon at CPAG Scotland for highlighting this issue and explaining it all so clearly