Forum Home → Discussion → Universal credit administration → Thread
Refusal to backdate Carer Element as change was not notified with 13 months of date change occurred
My client’s son was awarded MR Care DLA in August 2017. The client, who claims UC, did not claim CA as she understood she would be no better off financially. She therefore, it would appear, did not report a CoC in that she was a carer.
On discovering last month that she was not getting Carer’s Element, I told her to report a change and she now receives it.
I was under the impression from previous experience that The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 Para 31 applies and that the superseding decision takes effect from the first day of the assessment period in which the entitlement to the other benefit arises.
However DWP have stated the following. Was my understand therefore wrong? I’ve been unable to find reference to the following in ADMs.
“You declared caring for son from 31/08/20 17. For backdating to be considered, the change application must be
made within 13 months of the date the change occurred. Your request for revision fails to
identify any matters that might, on proper investigation, constitute an official error .As your request to reconsider
your award of Universal Credit, was made after the absolute time limit of 13 months, your request does not constitute an application for revision. As a result, no decision has, or will be made, and there is no right of appeal. This is not a “decision not to supersede”. Your existing award remains in place. The change submitted by you
on 24/07/2023, will be considered from the date on which that change was reported.”
Thanks.
Perhaps I have got this wrong but The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 Regulation 12 states:
“Award of another benefit
12. Where—
(a)the Secretary of State makes a decision to award a benefit to a claimant (“the original award”); and
(b)an award of another relevant benefit [F1or [F2Scottish disability benefit]] or of an increase in the rate of another relevant benefit [F1or [F2Scottish disability benefit]] is made to the claimant or, in the case of universal credit, to a member of their family, for a period which includes the date on which the original award took effect,
the Secretary of State may revise the original award.”
It seems to me that a revision is possible as the son is a member of your client’s family. The thirteen month thing appears to be a red herring.
The relevant benefit in this circumstance would have been Carer’s Allowance, which your client hadn’t claimed.
As I read it it is a case of late reporting of a change in circumstances. The 13 month reference is likely to the max extension period for late reporting, as per reg 36 of the UC etc. (DA) regs.
The relevant benefit in this circumstance would have been Carer’s Allowance, which your client hadn’t claimed.
As I read it it is a case of late reporting of a change in circumstances. The 13 month reference is likely to the max extension period for late reporting, as per reg 36 of the UC etc. (DA) regs.
On the assumption that the DLA claimant is a child and therefore part of the UC benefit unit, the relevant benefit is DLA. However, DLA on its own does not automatically trigger entitlement to a carer element: either the claimant needs to be on CA (which she wasn’t in this case), or the DWP needs to be aware that s/he is caring for at least 35 hours a week. It’s the apparent failure to present herself as a carer that is the problem here.
If the son was previously not on DLA at all, I would assume that DWP made a superseding decision to add a disabled child element to the award from the commencement of the DLA award. Your client wants that decision revised to include a carer element too. The only possibility I can see is that there was an official error in that the reporting of a child getting DLA(c) should prompt DWP (either by automatic process or by human initiative) to enquire as to whether the claimant is caring for the child. It’s a long shot, but it would appear that there is a right of appeal as per 2019 AACR 14.
If a disabled child element was in payment already because the son was already on DLA(m) or low rate care, and DWP was unaware that the claimant was a carer, then no superseding decision was necessary at the time, which means there is no decision to challenge on the official error ground. Instead, the appeal would be against the superseding decision that finally was made in 2023, on the grounds that it has effect from the incorrect effective date.
The position is complicated if:
- other decisions have been made in the meantime (not necessarily the case as many UC adjustments are made without a decision);
- there has never been a disabled child element either
But see the ADM at A4361 Example 2, which has the following:
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.
But see the ADM at A4361 Example 2, which has the following:
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.
Per Schedule1, para’ 31(1) &(2) of the UC etc. (D&A) Regs 2013
Is the quote in the opening post from an actual PDF ‘decision’ or is it just something plonked on the journal by a case manager?
But see the ADM at A4361 Example 2, which has the following:
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.
Per Schedule1, para’ 31(1) &(2) of the UC etc. (D&A) Regs 2013
The point I was (badly!) trying to bring out was that even though the benefit does not directly affect UC, it could still be sufficient. The legislation is not so clear on that.
But see the ADM at A4361 Example 2, which has the following:
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.
Per Schedule1, para’ 31(1) &(2) of the UC etc. (D&A) Regs 2013
The point I was (badly!) trying to bring out was that even though the benefit does not directly affect UC, it could still be sufficient. The legislation is not so clear on that.
Quite.
As you clearly know, the legislation merely provides the mechanism for fixing the effective date of supersession. The fact still needs establishing by the claimant that he was actually providing the relevant care at the time.
Is the quote in the opening post from an actual PDF ‘decision’ or is it just something plonked on the journal by a case manager?
It was a journal entry by a case manager.
DCE is in payment and has been for some time.
Is the quote in the opening post from an actual PDF ‘decision’ or is it just something plonked on the journal by a case manager?
It was a journal entry by a case manager.
My suggestion then would be just to insist that a DM looks at it.
Have you checked that the client was definitely on UC back in 2017 when the award of DLA to the son was made? I’m just thinking about when UC was rolled out, and that it’s possible that she only moved over to UC after the DLA (we only had full service in 2018 here if I recall correctly).
If she claimed UC after the award of DLA was made, that could be a way in, as she probably stated that she was a carer for her son on her initial claim form, or in a new claim interview with jobcentre staff.
More generally, if you could find evidence that she has reported her caring responsibilities to the DWP in any form, you can (I think) argue this is a valid disclosure, even if it wasn’t done formally through the change of circumstances tab. There’s nothing in the regulations that says that a change must be reported in one specific way (i.e. only via the journal), at least as far as I am aware.
Just a couple of thoughts.
Cheers
Alex