Backdating child element after turning 16
Has anyone had any experience with this?
For CTC, HMRC accept that when they remove a 16-year-old from the award as of 1st Sep, then to get the child added back on is not a “change of circumstances” which has to be reported, and therefore there is no issue of backdating. This is limited however, on general principles, to the point where it is no longer possible to get the final (s.18) award notice revised. But even then, the child element could still be included from the start of the following tax year despite HMRC only being informed of this much later.
What about UC?
UC would have superseded the award to remove the child element. The claimant is therefore looking to get that supersession revised. Is there any way this could be treated as an official error (due to UC not enquiring as to the status of the child), to remove the normal time limits for an any grounds revision?
I may be way off the mark here, but is this a possible approach?
So my understanding is that each month when you are on UC, a new decision is made on your entitlement - i.e. it’s decided each month that you are entitled to x or y amount, based on your circumstances, earnings etc etc. So that effectively gives you a decision each month that the QYP is not to be included.
Could you not simply ask for those decisions to be revised to include the QYP using regulation 9 of the UC, PIP etc. (Decisions and Appeals) Regulations 2013:
9. A decision may be revised where the decision—
(a)arose from official error; or
(b)was made in ignorance of, or was based on a mistake as to, some material fact and as a result is more advantageous to a claimant than it would otherwise have been.
So you can just say, ‘the decisions made each month since the child element was removed were made in ignorance of the material fact that the child was a QYP’.
Obviously with legacy benefits, you have a decision made and then that decision might not be interfered with for several years, so if something has changed since the original decision, the only way to get it changed is via supersession. But with UC, because you get a fresh decision each month, does this not open up the possibility of just using the revision route to get a particular decision changed? As I say, I may be way off the mark.
If I’ve understood your argument correctly, Alex, then the problem with it is that Reg 9(b) allows any time revision only where the mistake benefitted the claimant. But in Charles’s question, the mistake removed the QYP from the claim - which was not more advantageous to the claimant. I think the point of 9(b) is to allow any time revisions which generate overpayments.
In relation to the argument about monthly decisions in UC, this is something that I can remember discussing on here before. At first I thought of it the same way you are thinking. But I think s159D of the Administration Act strongly supports the view that there is only a decision when something changes - and sometimes not even then (e.g. Reg 41 D&A Regs). I think the monthly payment statement tends to give the illusion that a new decision is being made, but in reality it’s not necessarily the case.
To respond to Charles, I don’t recall having had a problem with this point. In general UC seems to be reactive rather than proactive. But yes I would agree with this argument on official error. I think that any decision that’s made on an unfounded assumption that a child is not remaining in education looks like official error. The same is true whether it’s UC or HB - and this is why HB, in my experience, send out a letter asking the relevant question at key birthdays. If the claimant fails to respond then it is a justified adverse inference decision rather than one which is complete guesswork (and at 18 it would also lead to a maximum NDD being applied).
I have had a client with the same problem - a child element was removed for a QYP without any warning, investigation or explanation. I suspect it was done automatically by the system
They noticed the problem straight away so it was simpler to resolve as an any grounds revision could be used. (It still took from November to May though)
I think it’s a reasonable argument that it was an official error to remove entitlement to an element without any investigation or warning
Thank you so much for your response to this Timothy. I think you are right. The provision (9(b)) I was arguing isn’t going to be beneficial for the claimant. I hadn’t read it correctly and had effectively turned the meaning on its head. So when I said, ‘I may be way off the mark here’, it turns out, I was way off the mark!
Hopefully the official error line of thought will yield some success. Perhaps the ‘Kerr’ train of thought that suggests that benefit claims are a collaborative endeavour between the claimant and the DWP (or words to that effect), in which each play their part, might be useful in making such a case. The failure of the DWP to even ask ‘is your child still in FT non-advanced education?’ is arguably a failure - the claimant cannot be assumed to know what information to furnish, if not even asked the right questions.
Thanks everyone. Hopefully the official error argument will succeed.
Just regarding the points about monthly decisions, I remember as well discussing this some time ago. I think I was always convinced that they weren’t actual decisions under the Social Security Act 1998, but it wasn’t clear.
If I remember correctly, Elliot suggested that the monthly statement issued by DWP could perhaps be treated as a refusal to supersede, which would then provide a basis for a revision later.
Has anyone had any experiences with this issue?