Arrears of Carer Element and reg 38(5)

Hello, does anyone know whether the SoS has prescribed ‘any particular way’ that changes in circs are to be notified as provided for by reg 38(5) of the UC etc. Claims and Payments regs 2013?

We have a case where client notified DWP of her award of PIP looking for carer element to be added in UC. She put a note on her journal and was advised to go to home page, report a change, caring for someone etc.

DWP only added the carer element from the date client did this several months later. She has signif mental health problems and could not manage this.
DWP are refusing to backdate, arguing that client has been late in notifying them of the change in circs. We are arguing that she notified them as required. Evidence of notification is contained within the appeal papers.

Our question is, have separate regs been laid, or methods approved by SoS, specifying the way in which changes in circs for UC need to be notified, ie, go to account, home page etc.?
I’ve also noticed para 2 (6) to schedule 2 of the regulations re, electronic communication,
(6) Where the person uses any method other than the method approved by the Secretary of State of submitting any claim or information, it is to be treated as not having been submitted.

I’m working from Vol 111 Sweet and Maxwell 2018/19 and there is no commentary to the regulation or schedule.

Comments welcome
Thanks
Anthony

Sorry, who is the carer and who has the PIP award? It may be possible to avoid the whole issue of notification by reference to para 31, sch 1 D&A.

But if that is not the case, I am not sure that this is a rabbit hole which needs to be gone down. Your client has prima facie notified the change to the DWP. It is really on the DWP now to explain why that notification was not adequate. I think your role is to respond to their argument rather than write one for them.

Even if there are, whether in the individual case or more broadly, ‘determinations’ of the SSWP as to how changes are to be reported, that would only seem to relate back to the claimant’s reporting obligations under reg 38(4) C&P Regs. Reg 35 & sch 1 para 21 D&A Regs do not make any reference back to the C&P Regs (c.f. paras 23 & 24) and there does not seem to be any necessary read-across. Therefore, I am not sure that even if it is the case that there are limitations imposed on the sorts of notification which will satisfy reg 38 C&P, its not clear that this would have any application to your case. The question is just whether and when the appropriate office was notified.

I have had at least one similar case in the past and got the decision overturned on MR as had put message in Journal informing them right away that service-user was claiming DLA for his child and wanted to inform of this and his carer role. When child was awarded DLA put another message in journal informing that she now has DLA. Case Manager refused to backdate the Disabled Child Higher Rate Element and the Carer Element saying we failed to inform in time. When challenged they overturned and actually did this quite quickly (for UC).

Jim

Hello, thanks for the replies,
Rabbit hole point taken, I think I’ll get out of it and concentrate on the fact that UC were notified

Anthony

I have a case currently going to appeal because UC refuse to back date the CE after the person the claimant is caring for got a back dated award of PIP. In this case we have cited rule 31, and quoted from the DWP DM’s own guidance memo as follows…
“The DWP’s own guidance memo ADM A4 – Supersession, suspension, and termination, states clearly that when a claimant or family member becomes entitled to a relevant benefit, the supersession effective date rule means that he/ she did not have to report the change within a certain period. From page 34 of the memo A4361….21. “UC and award of other benefits
A4361 [see Memo ADM 12-21] 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 effect from the first day of the assessment period in which entitlement to the other benefit or an alteration in its rate arises or entitlement ends.
SS Act 98, s 8(3); UC, PIP, JSA & ESA (D&A) Regs, Sch 1, Part 4, para 31(1) & 31(2)(a)
Example 1
Sam has been in receipt of UC from 21.11.19. On 28.5.20 she was awarded CA from 30.3.20 meaning that she is also entitled to the carer element in UC. Sam didn’t notify the change until 24.9.20. The supersession effective date rule means that she did not have to report the change within a certain period. The UC award is superseded on the grounds of a relevant change of circumstances and the carer element is awarded from 21.3.20.
Example 2
Connor has been in receipt of UC from 14.12.18. On 11.5.21 his daughter was awarded DLA at the middle rate from 8.2.21. He didn’t notify the change until 26.5.21. The DM is satisfied that Connor had regular and substantial caring responsibilities for a severely disabled person since 8.2.21 and so there is a clear and direct link between the award of DLA and entitlement to the carer element. The supersession effective date rule means that he did not have to report the change within a certain period. The UC award is superseded on the grounds of a relevant change of circumstances and the carer element is awarded from 14.1.21.”