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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Erosion of TSDPE and ‘sum of the relevant increase’

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PCarysforth
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sorry yes it would be 105 - I did the maths quickly and for some reason used 363 as LCWRA figure !

PCarysforth
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Elliot Kent - 01 November 2021 01:53 PM

I think in the typical case, its a loss of £285 TP + c. £164 CE less a gain of c. £344 LCWRAE for a net loss of c. £105.

Beyond just potentially losing out by pursuing a WCA in this situation, isn’t there a concern that these claimants could be left with recoverable overpayments as a result of an LCWRA assessment or a successful MR/appeal? I am away from reference stuff at the moment but this is something I would want to be very confident on before advising someone on a potential appeal…


I think it would be a recoverable overpayment - and not sure they would agree to use their discretion not to recover (although you would hope they would)!
But I think it would only be an erosion case if the LCWRA decision took effect after month 1 of TSDPE.

If the decision was changed from the start of the UC award it would be a change to the original TSDPE amount instead.
E.g.
claimant moves LA area, was on IS as a carer with SDP - goes to UC with TSDPE & carer element and puts in Fit notes - month 4 gets LCWRA - LCWRA wipes out TSDPE, carers ends and claimant 105 worse off.

if someone was found fit on ESA, then claims UC and is also a carer, they would get carers element and 285
If they then challenge the ESA decision and get support group - UC should pay LCWRA from month 1
In this case they would need to change the TSDPE to 120 instead of 285 TSDPE from month 1 - no erosion as the change was in first MAP.
163+285 = 448, now 120 + 343 = 463 = 20 better off and potential link to before april 17 still intact

So think the only danger is going from carer to LCWRA in a month after the TSDPE has been awarded so subject to erosion, rather than appealing past ESA found fit decisions - does that make sense? /fit with other peoples understanding?
I would want to double check the maths in any case though

Owen_Stevens
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Has anyone seen this happening in practice?

Peter Turville
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Owen_Stevens - 22 November 2021 03:01 PM

Has anyone seen this happening in practice?

Further to Owen’s recent article on this issue in CPAGs Welfare Right Bulletin 286 we have a case where award of LCFWRAE and loss of CE appears to have resulted in the loss of TSDPE and client is £95.22 ‘worse off’.

This is the same client as in https://www.rightsnet.org.uk/forums/viewthread/17672/ Having been re-awarded the TSDPE & arrears paid following resolution of the IT ‘glitch’ in the subsequent AP she was awarded LCFWRAE (she had not been in receipt of a LCFWE although had been assessed as LCFW for UC - UC claim was prompted by an ESA ‘fit for work’ dec. in 2018 challenge to which was unsuccessful at appeal).

For some reason (presumably due to the rent inc. that prompted the ‘glitch’) her TSDPE had reduced from £285 to £275.12 during the period of the ‘glitch’ - but the sums don’t add up!

A problem with this issue is that DWP do not provide any detailed calculation / explanation of how / why TSDPE has eroded to £X or nil and it is not always possible to ‘backtrack’ through UC account to check if the calculation is correct.

We are assisting client to pursue via MR and also DWP escalation team, MP & CPAG.

UPDATE - client has today received a MRN which argues DWP position as in WRB article

[ Edited: 10 Mar 2022 at 04:27 pm by Peter Turville ]
Peter Turville
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Further update:

have now received DWP response via MP. Highlights include:

“If a claimant has an increase in their UC entitlement, the increase in their UC will be offset by a reduction in their TP amount”.

“As the award of LCFWRA added a further £343.63 to her overall award ... x’s TP was reduced to nothing”.

” ... the last AP, which included the TP ... £975.20 payable.”

” ... the next AP which included the LCFWRA element ... £879.98 payable.


So how exactly is an ‘overall award’ / ‘entitlement’ decrease from £975.20 to £879.98 and increase in her ‘overall award’ / ‘entitlement’? How is that compatible with entitlement under the WRA s3 ‘financial conditions’ means test?

There may be other arguable interpretations of the Regs. that result in a claimant in this situation being worse off but DWP stating that an overall decrease in entitlement is an overall increase ........

Ianb
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“£343.63 added to her OVERALL award” is clearly untrue.
An additional element valued at £343.63 was included in the calculation of the award but a previous element valued at £163.73 was removed.
The overall award increased by the difference.

Rebecca Lough
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Owen_Stevens - 22 November 2021 03:01 PM

Has anyone seen this happening in practice?

We’ve got two cases. One where someone went from no housing costs to having housing costs and I can’t see a way around it. The other we are challenging as we believe the change should have been applied from the 1st AP. UC are currently challenging that the reasons for lateness weren’t good enough.

PCarysforth
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Unfortunately this is how we thought it might work out. The fact that you can’t understand the decisions from the statements etc doesn’t help a claimant being able to understand and challenge though - might be a good shout to contact the ‘computer says no’ cpag project too about that part of it.

Peter Turville - 10 March 2022 12:32 PM
Owen_Stevens - 22 November 2021 03:01 PM

Has anyone seen this happening in practice?

Further to Owen’s recent article on this issue in CPAGs Welfare Right Bulletin 286 we have a case where award of LCFWRAE and loss of CE appears to have resulted in the loss of TSDPE and client is £95.22 ‘worse off’.

This is the same client as in https://www.rightsnet.org.uk/forums/viewthread/17672/ Having been re-awarded the TSDPE & arrears paid following resolution of the IT ‘glitch’ in the subsequent AP she was awarded LCFWRAE (she had not been in receipt of a LCFWE although had been assessed as LCFW for UC - UC claim was prompted by an ESA ‘fit for work’ dec. in 2018 challenge to which was unsuccessful at appeal).

For some reason (presumably due to the rent inc. that prompted the ‘glitch’) her TSDPE had reduced from £285 to £275.12 during the period of the ‘glitch’ - but the sums don’t add up!

A problem with this issue is that DWP do not provide any detailed calculation / explanation of how / why TSDPE has eroded to £X or nil and it is not always possible to ‘backtrack’ through UC account to check if the calculation is correct.

We are assisting client to pursue via MR and also DWP escalation team, MP & CPAG.

UPDATE - client has today received a MRN which argues DWP position as in WRB article

Charles
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Elliot Kent - 29 October 2021 05:25 PM
PCarysforth - 29 October 2021 04:26 PM

Good news on net effect from LCW to LCWRA- that seems reasonable but not 100% sure it matches the regs as LCW/LCWRA aren’t the same element and ‘health related element’ isn’t in the regs - Any thoughts?

Well I doubt anyone here is going to be enthusiastically arguing against it…

I think there is a logic in treating them in this way. They are introduced together in the regs and are clearly conceptually and practically linked in a way which the Carers Element and the LCW/LCWRA elements are not. It seems a defensible position to treat them as different degrees of the same element rather than altogether separate elements, although perhaps the regs could be clearer if that was the intent.

I’m sure people have already seen this, but the draft Universal Credit (Transitional Provisions) Amendment Regulations 2022 amend the regs to clarify that where the LCW element is replaced by the LCWRA element, only the difference between the two is treated as an “increase”.

Ant
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Might be a long shot
Could it be argued that the carer element and work-related elements are amounts payable under S12 and therefore the overall increase is the amount by which the TE should be reduced, not the full amount of the ‘new’ element.
Relevant increase is defined in reg 55(4) as an increase in amounts (not elements) included in max UC under S 9-12 of the WRA 2012. “
(4) A “relevant increase” is an increase in any of the amounts that are included in the maximum amount under sections 9 to 12 of the Act (including any of those amounts that is included for the first time), apart from the childcare costs element.]”

The work related and carer elements are all payable under S 12 (2). The previous sections refer to, the standard allowance S9, children S10 and housing costs S11. So, if the TE should be reduced by the increase of the ‘amount’ payable under S 12, is it only the overall increase that it should be reduced by? 
Could it be argued that it not an amount included for the first time if it is an increase in an amount payable under S 12?

Elliot Kent
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That is a very interesting argument and I applaud the creativity but I don’t see it working.

Everything in ss9-12 WRA is described as an “amount”. The standard allowance is an “amount by way of an allowance”, each child element is “an amount for each child” and the CE and LCWRAE are “amounts in respect of such particular needs or circumstances”

I think it is a corollary of your argument that a given claimant receives one ‘amount’ under s9 and potentially then one under s10, one under s11 and one under s12. So if I go from CE to LCWRAE then that is really just a relative increase in my s12 ‘amount’ rather than a new LCWRA ‘amount’

The problem I think is that s12 explicitly refers to “amounts in respect of such particular needs or circumstances of a claimant” which seems to envisage the possibility of a claimant receiving different ‘amounts’ or multiple distinct ‘amounts’ all within the overall heading of s12. It is also consistent with the framing of s10 which appears to treat the awards in respect of each child and then the further award in respect of each disabled child all as being independent ‘amounts’.

CA Adviser
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Client is living with his father (who has an SDP) and has no housing costs. He is in receipt of ESA with the support component and an SDP. He wants to move into his own accommodation. If he claims UC before he moves out, as appears he has been advised to, to make it easier to add his housing costs later, he will be entitled to the transitional SDP initially, but if the housing costs are added in the second AP or later, his transitional SDP element will be wiped out. Is this correct?
Thanks

Ianb
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CA Adviser - 12 May 2022 10:19 AM

Client is living with his father (who has an SDP) and has no housing costs. He is in receipt of ESA with the support component and an SDP. He wants to move into his own accommodation. If he claims UC before he moves out, as appears he has been advised to, to make it easier to add his housing costs later, he will be entitled to the transitional SDP initially, but if the housing costs are added in the second AP or later, his transitional SDP element will be wiped out. Is this correct?
Thanks

That looks right to me. If he can afford to it is better to claim UC immediately after moving. Who has advised to claim UC before moving?

Charles
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Even better would be to claim UC within a month before moving. As the housing element will be added in the first AP, it will not reduce the TSDPE (as CA Adviser alluded to). He will then receive the housing element for the whole first AP despite his rent liability only beginning part-way through the AP.

Va1der
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Given the types of people more likely to be in temporary accommodation, could you raise the erosion of TSDPE on a move to permanent accommodation as an unlawful discrimination issue? (I don’t have any clients that fit, just thinking aloud.)