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Under 18s and Estrangement

S Duffy
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Though our work with young people we face the regular refusal of entitlement to 16 and 17 year old’s following estrangement and an apparent unwillingness of DWP to follow regulations, their own guidance and caselaw.  I believe I have some further insight to this issue and would like to canvass further opinion. 

We are unable to set out a test case or a case for judicial review because on intervention and advocacy we have overturned all the cases we have challenged, and the number is significant.  There is a misadministration of the process by DWP that stands in the way of many, many young people and a rightful entitlement to UC.  I believe this must be a national issue, ultimately and profoundly affecting young people who do not have advocacy.

We have tried to ask our local Job Centre Liaison group to address the issue but progress is like wading through mud.  I have personally worked on this for 10 months now. 

The issue:
Young people at the ages of 16 and 17 may have eligibility for UC due to the regulations setting out estrangement at UC regs. reg 8(1)(g); 3(b)(i); and, crucially in the instances we have had to support, the definition at reg 8(4) — “parent” includes any person acting in the place of a parent.

If a young person is under 18, then their initial online claim is looked at by Jobcentre staff and the computer based “UC Build” template is completed. This throws up additional questions that are not asked on the online UC claim form.

I am reliably informed by Jobcentre staff that the key question asked in the “UC Build” template to ascertain UC eligibility is this: ‘Can the claimant return home or move in with an adult who will take responsibility for them without severe risks to the claimant, the responsible adult or others in the household?’

If the answer to this question is ‘Yes’ then that is considered “a person acting in place of a parent”, estrangement Is found to be not established and the claim is declined.
If the answer is “No” then a further “Review” field is opened and completed by the member of staff. This then may lead to confirmation of estrangement.

(The level of education may also be explored in the UC Build but this is a secondary matter, and sometimes appears to be a distraction.  The first and key route to entitlement is estrangement in most cases.)

The UC Build question is at issue here. I am of the opinion that a ’person acting in the place of a parent’ means: a step parent, a foster parent, an adoptive parent, a guardian, social services, and others I am sure, but most importantly, collectively these people are accepting parental responsibility or at least ‘in loco parentis’, that is behaving in a manner that equates to the behaviour of a parent.

In the majority of cases we have seen, the UC Build question results in the acceptance of ‘an adult who will take responsibility for them’ as fulfilling the requirement of the regulation.

For example, and what is frequently the case, if a young person has become estranged from their parent(s) and had to, of necessity, move in with a boyfriend’s parents in their house, then DWP/UC argue that the boyfriend’s parents is a ‘person acting in the place of a parent’.  But in fact, should the burgeoning relationship break down, that young person would most likely be asked to leave that household.  This is not the action of someone acting as a parent would.

Other examples include the young person sofa surfing at an extended family member’s house, a grandparent, an uncle and so forth but in each case the route to entitlement via estrangement is denied on the grounds that there is an adult who will take responsibility for them and that is considered someone acting in place of a parent.

We have intervened on many cases like this, sometimes on a weekly basis and, with significant work, we have overturned all of these decisions, which indicates a large number of young people refused a rightful entitlement to UC.  Which begs the question, what must be happening to those who do not have the advocacy and support we offer to our service users.

As I have said, attempts to see this matter addressed at our Job Centre Liaison meetings are moving very slowly.
Are other advice services seeing this issue? I can only imagine the scope of the matter is national.

(I post here with the express permission of my colleague)

Aidan

 

[ Edited: 5 Nov 2021 at 10:41 am by S Duffy ]
Wensleyfoss
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Hi Aiden
I’m very interested as we have the same issues. When a YP is estranged and moves in with a grandparent, sofa surfing etc. the DWP state they have someone acting in a parental role. We have had a number of students attending performing arts colleges (non advanced) presenting as homeless. I have raised with Neil Couling and UC policy. How can we help?

S Duffy
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Hello
Thank you for your reply.

I have had a response form CPAG who acknowledge the frustration this must cause and have provided me with a couple of pieces of caselaw that should prove very useful if anything actually goes to tribunal. 

In relation to the meaning of ‘acting in place of a parent, which, it is stated, can be an informal arrangement, but importantly, in NP v SSWP [2009] UKUT 243 (AAC), that did not include the claimant’s boyfriend’s father.  In R(IS) 9/94, which is also referred to in the previous case, an immigration sponsor was found not to be acting “in the place of his parents” as her duties are not seen to be in parity with the duties of a parent, or in place of a parent.

My query has been sent on to the Early Warning System at CPAG and also to someone working on the impact of DWP digital design on decision making.

I find it interesting to hear you are experiencing this issue too, do please highlight your concerns through the CPAG Early Warning System.  Have you had any positive responses from Jobcentre and any indication as to how they are arriving at their decisions?  Are they aware of the problem with the UC Build question and prepared to address the matter?

The UC Build question is not a true test of the “acting in place of a parent ” requirement to find someone as not estranged, and that this must be barring young people across the country.  I have brought the matter to the attention of my local Jobcentre in the hope of a change in the manner of the question and the proper assessment of estrangement in all cases but progress is painfully slow.  Do you have a similar mechanism?

Unfortunately, many young people are unaware of their rights or the availability of advice resources, so will be not be able to assert their rightful entitlement; that can only place young people who are without advice support, in a very precarious position. 

Apart from discussing this administrative glitch with the DWP, perhaps via lobbying our MPs, in the meantime we must find ways to make young people aware of their rights and the services available to them in asserting those rights.

S Duffy
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Are other services seeing this as an issue? 
Perhaps it is hidden because those affected are unaware of the action they might take and do not come forward.

janebu
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We have come across this issue several times in Northumberland. When we help a young person make a UC claim we explain the issue of parental estrangement and suggest that they add a message about this on the UC journal.
However this is not always successful as when the work coach contacts the client they decide there is a responsible adult and no risk to the young person and close the claim.
With many of these cases we have been able to escalate them via the DWP partnership manager and they have been resolved by re-opening the UC claim. Where this has not happened we have submitted MR and then in 1 case an appeal which was successful but took many months.

UB40
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This is a new development. I was previously involved with training in the DWP ( now no more). Looking at version 12 of the ALP Refer to Decision Maker Young Person there isn’t a question relating to ” E1038 Parent1 includes any person acting in the place of a parent. “
The Work Coach completes the ALP and the To Do goes to the DM. So the question is are some DMs taking an unrealistically harsh interpretation of E1038. As they say in the DWP, possibly a training need.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/907997/adme1.pdf

S Duffy
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I am reliably informed by Jobcentre staff that there is a question asked in what they called the “UC Build” template to ascertain UC eligibility and this is: ‘Can the claimant return home or move in with an adult who will take responsibility for them without severe risks to the claimant, the responsible adult or others in the household?’  I believe that this is a yes or no question with an additional panel opening should the answer be “no”.  That might be the point at which information is gathered and it is referred to a decision maker.  I may not have the exact information.
I agree, there is a training need, yes, but I feel the question itself is misleading and does not seek the correct information as to whether another person is “acting in place of a parent”.
I also feel the DWP are repeatedly not following the decision in NP v SSWP [2009] UKUT 243 (AAC), that did not find the claimant’s boyfriend’s father. as someone acting in place of a parent.  There are many examples of DWP treating exactly this situation as “acting in place of a parent” when it patently is not, indeed there is an Upper Tribunal decision to that end.
Our intervention in each and every case has overturned adverse decisions, including getting the original claims now closed reopened and reviewed.  One appeal has been lapsed, again in the young person’s favour.  I feel that it may be unlikely DWP will let any of these go to appeal but it is generating considerable work for us in each case.

S Duffy
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janebu - 08 November 2021 11:36 AM

We have come across this issue several times in Northumberland. When we help a young person make a UC claim we explain the issue of parental estrangement and suggest that they add a message about this on the UC journal.
However this is not always successful as when the work coach contacts the client they decide there is a responsible adult and no risk to the young person and close the claim.
With many of these cases we have been able to escalate them via the DWP partnership manager and they have been resolved by re-opening the UC claim. Where this has not happened we have submitted MR and then in 1 case an appeal which was successful but took many months.

Thank you, this is again a similar situation to what we are facing, (and Autism Anglia above), young people are not being afforded their rightful entitlement unless there is significant advice service intervention.  It would appear this is more than isolated cases, it would appear to be a systemic issue.

I would have hoped that liaison mangers would recognise the matter as persistent and work with us to find a resolution, or at least to streamline the estrangement assessment, it must be creating unnecessary work for DWP as well

UB40
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In practice there is a huge amount of discretion on the part of the EO Decision Maker who may well be a Work Coach trained to be an ” Under 18 Adviser”. Just as in Gainful Self Employment decisions there will be lot of inconsistency and regional variations in practice.
Looking again at version 12 of the ALP ( Agent Led Process) I mentioned previously…..action 9.2 ” Confirm that the claimant has given permission to contact parents and third parties” and a tick box for the Work Coach to complete . However ADM states….E1052 Estrangement should be determined using the young person’s statement. There is no requirement to corroborate such evidence or contact parents. The young person should be believed unless their statement is self contradictory or improbable. “
I am aware that ” Under 18 Advisers” will contact parents, friends and relatives. Is there now a change of emphasis when contacting these third parties regarding questions relating to ” the adult who will take responsibility”. In the past ( and ADM hasn’t changed) the emphasis has always been on analysing the estrangement and not the context of the new domestic arrangements….as can be seen from the ADM.

I have asked the DWP for a summary of the new ALP. A FOI request for the ALP itself would be rejected as it is labelled Official Sensitive.

Serious risk to physical or mental health
E1054 Whether the young person is at serious risk to their physical or mental health and
has to live away from their parents is a question of fact. The DM will need to
determine the degree of risk in each case taking into account that the danger
1. need not be from the parents
2. includes any form of danger to their physical or mental health which causes
the young person to live away from their parents1
.
The DM should accept the evidence from the young person or representative unless
there is stronger evidence to the contrary or the evidence is self contradictory.
1 R(IS) 9/94
E1055 Examples of serious risk might be where the young person
1. has a brother/sister who is a drug addict and this poses a risk to the young
person who is exposed to the drugs at the parental home or
2. has a history of mental illness which is made worse by the parent’s attitude or
3. suffers from chronic bronchitis which is made worse by the damp conditions at
the parent’s home and
there is a serious risk that the young person’s health will be adversely affected by
staying in the parent’s home.
Young person living away from and cannot be supported by
parents
E1056 There is no definition of what constitutes a physical or mental impairment so it
should be given its normal everyday meaning. The DM should have regard to
whether the impairment has a substantial effect on a person’s ability to carry out
normal day-to-day activities. Some examples of what this could cover are people
who are
• registered as disabled with the LA
• paraplegic
• mentally ill
• polio victims
• suffering with rheumatoid arthritis and have difficulty with day to day tasks.
This list is not exhaustive.

[ Edited: 11 Nov 2021 at 08:56 am by UB40 ]
S Duffy
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In my experience, recently anyway,  DMs/jobcoaches etc. have not been contacting other relevant parties, eg. parents but have contacted the YP; concentrating on discussing the living circumstance with the young person.
However, as we know,  ascertaining that there is ‘an adult who will take responsibility’ is not properly ascertaining estrangement, so a YP is easily pushed off a rightful claim.
In some cases, other irrational reasons are introduced to the conversation that distract from the true route to entitlement, for example, as I think I mentioned above, in one case it was implied that social services had to be involved to assert estrangement, and then asking a vulnerable young person if they would want to involve social services?  Other deflections can be whether the YP is in education or not.

Following our intervention, we, or other agencies, may be asked for letters of support which is against the spirit of the guidance at E1052. 

Ultimately we have reversed all the decisions we have advocated on, which is running at 2 or 3 per month.  We have been using the local YEC team to support under 18s claims but that avoids dealing with what is a broader, systemic issue.

This issue may always have been present but we have certainly noticed a significant uplift in cases since Dec. 2020

Wensleyfoss
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Hi
Apologies for not replying, I didn’t get a message to say there had been a reply. I have referred to EWS, MP and DWP Policy. Perhaps a collective letter might have more impact. If you would like to email me my contact is .(JavaScript must be enabled to view this email address) Thanks

S Duffy
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Thank you, a collective letter may well help, I am still trying to work out the next steps from our end.  I will keep your email address on record.

UB40
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My attempt to access the current Young Persons ALP ( Agent Led Process ) via FOI failed as the DWP state that it is not a standalone pdf.
I was provided with a link to the latest staff guidance.
http://data.parliament.uk/DepositedPapers/Files/DEP2021-0835/162_Under_18s_V13-0.pdf

” Following a search of our paper and electronic records, we have established that the
information you requested is not held as a specific Agent Led Process as you have
requested. The Agent Led Process has been embedded into the Universal Credit (UC)
System and therefore does not exist as a standalone document”

S Duffy
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janebu - 08 November 2021 11:36 AM

We have come across this issue several times in Northumberland. When we help a young person make a UC claim we explain the issue of parental estrangement and suggest that they add a message about this on the UC journal.
However this is not always successful as when the work coach contacts the client they decide there is a responsible adult and no risk to the young person and close the claim.
With many of these cases we have been able to escalate them via the DWP partnership manager and they have been resolved by re-opening the UC claim. Where this has not happened we have submitted MR and then in 1 case an appeal which was successful but took many months.

Hello,

There has been a small development on this matter, I have recently been contacted by Jessica Strode, Judicial Review Project Worker at CPAG; Email: .(JavaScript must be enabled to view this email address)

She is suggesting preparing a pre-action protocol letter in relation to this matter, she is very interested in any live cases relating to this issue.

In our organisation, we have been able to resolve each and every case that comes up quite promptly now, and have none that could go to tribunal.  We have developed a good working relationship with the Jobcentre YEC team who caseload our young people as vulnerable and in need of additional support.

We are however, able to provide case studies in the first instance.

This is all well and good but the core issue remains and very probably affects young people nationally, those who do not have such a support network to rely on.

If your organisation have cases that the Judicial Review Project could look into, perhaps with a view to going for a JR, I would be very keen to forward this to Ms Strode, or you may wish to contact her directly via the email address above.  I am sure a case study would be most welcome too.

I look forward to hearing from you.

Regards,

Aidan Gormley

S Duffy
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Wensleyfoss - 22 November 2021 02:59 PM

Hi
Apologies for not replying, I didn’t get a message to say there had been a reply. I have referred to EWS, MP and DWP Policy. Perhaps a collective letter might have more impact. If you would like to email me my contact is .(JavaScript must be enabled to view this email address) Thanks

Hello, I have emailed you directly at the address above.
Aidan

S Duffy
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Thank you for your response and your research.  Things have been busy at my end and I haven’t been able to give this as much attention as I might.

UB40 - 10 December 2021 01:44 PM

” Following a search of our paper and electronic records, we have established that the
information you requested is not held as a specific Agent Led Process as you have
requested. The Agent Led Process has been embedded into the Universal Credit (UC)
System and therefore does not exist as a standalone document”

I believe this refers to the online UC template that I was told is called the “UC Build”.  The relevant question relating to under 18s is within this form, as outlined in my original post:

“....... the key question asked in the “UC Build” template to ascertain UC eligibility is this: ‘Can the claimant return home or move in with an adult who will take responsibility for them without severe risks to the claimant, the responsible adult or others in the household?’

If the answer to this question is ‘Yes’ then that is considered a “person acting in place of a parent”, so estrangement Is found not to be the case, and the claim is declined.

If the answer is “No” then a further “Review” field is opened and completed by the member of staff. This then may lead to confirmation of estrangement.

(The level of education may also be explored in the UC Build but this is a secondary matter, and sometimes appears to be a distraction.  The key route to entitlement is to establish estrangement, in most cases.)

The UC Build question is at issue here. I am of the opinion that a ’person acting in the place of a parent’ means: a step parent, a foster parent, an adoptive parent, a guardian, social services, and others I am sure, but most importantly, collectively these people are accepting parental responsibility or at least ‘in loco parentis’, that is behaving in a manner that equates to the behaviour of a parent. 

The definition in the UC regs. uses that phrase “any person acting in the place of a parent”.

I have been directed to some helpful caselaw which broadens the scope from my definition of ‘in place of a parent’  but nonetheless, the crux in the cases I am involved in, is Jobcentre are finding that there is ‘someone acting in place of a parent’ without a proper exploration or definition of this.

I would suggest that the UC Build question needs to be looked at, perhaps in light of caselaw and other guidance in relation to “any person acting in the place of a parent;”, and training of the relevant staff to help them ascertain a more reliable account of the actual circumstances in which the 16 or 17 year old finds themselves.

[ Edited: 13 Feb 2022 at 04:42 pm by S Duffy ]
S Duffy
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Following the concerns raised on this thread, we were contacted by the CPAG JR Project and a specific pre action protocol letter in relation to this issue has been drafted by Jessica Strode.  This can be found at:

JR129 on https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/students

Many thanks to Jessica for her work on this.