Back payment of child disability and carer elements
My client was notified in December 2021 that her child had been awarded DLA care at the highest rate with effect from August 2021.
In January 2022 the client reported a change of circumstances and soon afterwards her UC was increased by the child disability addition and the carer element. But she has still not received a back payment of these elements covering the period from when the DLA award started to when she reported a change of circumstances, despite the client chasing this up on her journal. There doesn’t appear to have been a decision that she isn’t entitled to a back payment - the DWP appear to be still thinking about it.
Is the non-payment of this amount susceptible to a mandatory reconsideration request? If not are we in judicial review territory?
All thoughts welcome.
This is a recurring issue which DWP need to get a handle on.
The problem seems to arise because the Case Manager (CM) is able to add in new elements but does not have the authority to backdate those elements. The backdating needs to be considered by a Decision Maker (DM).
For whatever reason, in these cases, the CM routinely fails to send the case over to the DM to consider backdating and just puts the relevant elements in place going forward and leaves it at that.
To make some progress, you will need to get the case sent over to a DM to be looked at. Whether that is through the lens of (1) MR of the effective date of the CM’s supersession decision (2) first instance consideration of a supersession application or (3) MR of each of the post-August AP award decisions - is not very important. What is important is getting it under the nose of a DM.
Unfortunately the CM is the gatekeeper here and will need to be persuaded to send the case ‘upstairs’ (as it once was). That could be done through journal messages, complaints or involvement of escalation contacts such as partnership manager. It is often quite difficult
In principle, if you were to write on the journal requesting an MR, then if the CM were to return with some sort of gatekeeping nonsense, it could be argued that this overcame the MR requirement and permitted an appeal Ideally you would just want to get DWP to change their minds without that being necessary though as it would be much quicker.
Thank you very much Elliot.
If the client agrees I think we will go for a twin track approach - ask for MR and at the same time raise it with the local MP.
MR requested in late May:
“On [date] I reported two changes of circumstances - first that [ ] had been awarded Disability Living Allowance with effect from [date] and second that I was her carer, also with effect from [date]. You duly added a disabled child addition and a carer element to our Universal Credit entitlement, but only with effect from the assessment period in which I reported the changes. I am hereby asking for mandatory reconsideration of the decision not to add these amounts with effect from the first day of the assessment period in which [ ]‘s DLA commenced, in accordance with paragraph 31 of Schedule 1 to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. Citizens Advice have helped me with this note.”
Client reports that back payment has just been received.
(Client didn’t want to contact her MP, so MRR was the only thing we did.)
I’m being lazy here but just want to check. Is the client entitled to the additional elements from the date of the award, as opposed to the date that she first notified them of it?
If we are being pedantic, possibly one but not the other.
The disabled child element is generated directly by the DLA and has no time limit.
Some might say that DWP cannot mind-read and if you don’t disclose that you are a carer that’s your look-out, so the carer element would only run from the AP in which you first presented yourself as a carer. The answers to that are:
1. Until the child gets DLA there is no point reporting that one is a carer because it won’t achieve anything. Maybe you could say “today my daughter has applied for DLA and so I’m reporting that I am her carer. In due course DLA will be processed and since you know that I’m a carer you will be able to award the carer element from this AP and not the later one in which I confirm the award of DLA”. But I think most DMs would see it as a reasonable excuse for delay if you only reported being a carer after DLA entitlement was confirmed
2. If the parent has been awarded Carers Allowance from the same date as the child’s DLA, this too is an any-time ground for supersession and it automatically triggers entitlement to a carer element
Thanks that great