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Minimum Income Floor - Health Condition

Hammer
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Your help please:

I have a client who is in self-employment. There has been a downturn in business – which may improve over time – but currently his net profit is significantly less than in the past. He has been in receipt of UC and the MIF was not applied until about 2 months ago after he exhausted his 12 month period and is having difficulty meeting his rent etc. going forward. He has some health issues and has a MED3 from his GP which he has not submitted to UC yet. Am I correct in saying that if he does submit the sick note and switches his UC claim to one based on the WCA and limited capability for work then if the DWP no longer apply the “all work-related requirements” to his claim the MIF cannot apply? He will continue to do some self-employed work (see below).
And when will the DWP remove the “all work-related requirements”?
Will they do this when he makes the claim for UC based on a health condition or only following a WCA?

Other points of note is that downturn in business means that he works about 12 hours per week and he earns – or his net profit is – less than 16 hours x NMW per week.

UB40
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Hi Hammer,

The automatic exemption from the MIF follows the granting of LCW or LCWRA after a WCA.
You say that his business may improve over time which suggests he does not wish to challenge his ” gainfully self employed status “. If he gave up self employment he would be obliged to look for salaried work ( until a favourable WCA ) and the MIF would not apply.
If he informs his Work Coach that his current health condition is long term, he can make a request for a reduction in his expected hours of work whilst remaining self employed. The reduction in the expected hours of work would translate into a proportional reduction in the MIF.
Please let me know if I haven’t explained this adequately.

Charles
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I’m pretty sure DWP would agree to backdate the removal of the MIF once he is found to have LCW/LCWRA. Similar to how they agree to backdate the work allowance.

Hammer
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Thanks UB40 and Charles for your replies which are both really helpful.

To be clear if he continues in self-employment but asks for a reduction in the number of hours of work due to a long-term health condition this will translate to pro rata reduction in the MIF if i understand you correctly.

And if he is then found to have LCW/LCWRA then the MIF can also be backdated. Does the backdate apply only from the end of the assessment period?

Thanks again both for your explanations.

Kelly
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Removal of MIF should be removed from start of continuous period of evidenced sickness. I had a successful WCA appeal earlier this year where self-employed person was awarded LCW status - DWP backdated underpayment to start of sickness period, no problem.

Hammer
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That’s great.

Thanks Kelly.

UB40
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Hammer - 05 June 2024 08:48 AM

Thanks UB40 and Charles for your replies which are both really helpful.

To be clear if he continues in self-employment but asks for a reduction in the number of hours of work due to a long-term health condition this will translate to pro rata reduction in the MIF if i understand you correctly.

And if he is then found to have LCW/LCWRA then the MIF can also be backdated. Does the backdate apply only from the end of the assessment period?

Thanks again both for your explanations.

Yes, reduction in the expected hours of work translates to a proportional reduction in the MIF. Claimants who are self employed are also entitled to a work allowance if they meet the normal criterion.

Hammer
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An update and your help please.

The DWP have responded to my client as to his long-term health issues and the MIF and said the following: I am not sure where you get your information on the MIF by how many hours you are able to work according to your GP… but that is not the case. As a self-employed person you are expected to protect your income…[they refer to income protection insurance cover] Social security cannot be used to support self-employed business after the start-up period…Until you receive a positive WCA decision the income amount we will use to work out your UC is £1,556.30… The MIF applied is correct and you are expected to earn £1556.30 as advised…

So that we can challenge the decision can I get some guidance. Is the pro rata application of the MIF due to a health condition whilst awaiting a decision on the WCA discretionary? Is there any specific legislation, case law or guidance I can refer to?  The claimant has provided a MED3 and completed a UC50.

Your help would be gratefully appreciated.

Andyp5 Citizens Advice Bridport & District
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The following is essentially what everyone has advised already but can be posted on the client’s journal.

‘If the condition has a longer-term effect on the claimant’s ability to undertake
their self-employed work, the Minimum Income Floor or gainfully self-employed
status may change.
Short-term health conditions experienced by the claimant are regarded as part of
the normal pattern of self-employment. Claimants need to plan for these periods.
There is no change to a claimant’s expected hours and the minimum income
floor.
When a claimant reports a long-term health condition or disability that affects the
hours they can work, their expected hours of work and minimum income floor is
tailored to what self-employment they can do for the length of their condition.
This is reviewed as new medical evidence becomes due or available’.

https://data.parliament.uk/DepositedPapers/Files/DEP2024-0442/129._Periods_of_sickness_and_self-employment_V8.0.pdf

See also ADM Chapter J3: Work-related requirements -

J3060 The expected hours of work for a claimant who has a
1. physical or
2. mental
impairment are the lower number of hours that the Secretary of State considers is reasonable as a result
of the impairment1
. The claimant does not have to show that they have reasonable prospects of
obtaining paid work.
1 UC Regs, reg 88(2)(c)
Example
Carl has claimed UC. He suffers from rheumatoid arthritis which can cause him a degree of pain and
discomfort but he does not have LCW. Carl’s adviser considers the evidence and decides that Carl
cannot be expected to work for 35 hours a week but that it is not unreasonable for him to work for ten
hours a week. Carl’s expected number of hours a week for the purposes of UC are therefore ten per
week.
J3061 A claimant may have their hours of work limited in any way provided the limitations are reasonable
in the light of their physical or mental condition.
Example
Cliff suffers from emphysema. He asks that the type of work that he can do should be limited to
1. avoid working in smoke or fumes and
2. restricting the number of hours of work in a week or the number of hours in a shift due to
fatigue/limitations.
This is determined to be reasonable in the light of Cliff’s condition.
J3062 Where it is agreed with the claimant that there are acceptable limitations due to their physical or
mental impairments then they do not have to show they have reasonable prospects of getting paid work.
However, the claimant must show that all the limitations are reasonable and are directly connected with
their physical or mental impairment

https://assets.publishing.service.gov.uk/media/6627c4d0838212a903a7e69e/adm-j3.pdf#page=12

Hammer
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Hi Andy,

That’s really great and helpful.

Thanks

Cliff

Andyp5 Citizens Advice Bridport & District
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Felt your pain Cliff! Really hope it makes your life and your client’s life easier. It’s so draining and attritional and depressing trying to make headway at times.

We had a recent email from the DWP that our client had not been sanctioned. I was hassling to get the MR referred to a decision maker.

Instead I was advised that our client’s UC had been reduced because they had missed an appt at the job centre.

I had to then gently point out to the worker concerned that the first paragraph of the decision letter was the giveaway i.e. it referred to client being sanctioned.

We all make mistakes, I can live with that. But with it being so endemic with UC. We need some honesty from on high and a proper meaningful escalation route.

Um oh gawd thanks for the therapy!!!

Hammer
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We all need therapy when working with the DWP! Thanks again.

Hammer
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Dear Andy et al,

I am coming up against a brick wall at the DWP.

Andy, we posted the information you provided on the client’s UC Journal.

Prior to this we had received the following message from the DWP:

“Thanks for your message, I am not sure where you got your information on that the MIF is determined by how many hours you are able to work according to your GP etc, but that is not the case.

As a self employed person you are also expected to take reasonable steps to protect your income, if this involves an income protection insurance cover etc, then that is what you needed to have done. Social security cannot be used to support Self employed businesses, after the one year start up period.

Until you receive a positive WCA decision, the income amount we’ll use to work out your Universal Credit is £1,556.30 as you have had a start up period.

The MIF applied is correct, and you are expected to earn £1,556.30 as advised when you accepted the start up period.”


When we posted the information Andy provided around the MIF and the approach the DWP should take as stated in their own guidance etc. we were referred back to the above message. There was no reference from the DWP to the information we provided and that they had considered it.

What would be the best approach to take next? A complaint about the handling of the case? Or is the application of the MIF as it applied to the claimant’s last assessment period one we can challenge by MR – we have done this and the DWP have stated it is not a matter that can be raised for a MR. One question is whether the MIF can be challenged directly by review/appeal?

My client is feeling somewhat desperate at the moment and the DWP refuse to budge or even consider the information the client has provided them pertaining to his long-term health problems which include living with HIV, significant mental health issues and significant weight loss.

Once again any advice you can offer would be gratefully appreciated.

 

 

Andyp5 Citizens Advice Bridport & District
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Reviewing the Minimum Income Floor
The Minimum Income Floor must be reviewed when a change of circumstances
occurs, for example:
• the claimant moves into a different age band for the National Minimum or
Living wage
• the number or hours of work search and/or availability changes (for
example, changes to caring responsibilities or health conditions)
• the self-employed person is the lead carer and their youngest child
reaches the age of 3 or 13
the claimant may be required to attend a Self-employment Review interview and
this can be booked:
• face-to face (for example, if the claimant is required to provide
documentary evidence and work commitments permit)
• by telephone
• by video (if the claimant has the required equipment and internet access

https://data.parliament.uk/DepositedPapers/Files/DEP2024-0442/009Applying_the_Minimum_Income_Floor_V21.0.pdf

I am guessing Cliff you work on National line as opposed to the same locality as your client. So the following options spring to mind. Copy and paste the above and link as a holding post i.e. as part of the electronic paper trail. Then below to break the impasse.

1. I would very tempted to ask Daphne if she would mind taking your client’s case up with the stakeholders.
2. Alternately the MP if they are proactive.
3. https://www.gov.uk/government/publications/dwp-partnerships/national-partnership-teams
4. https://makeacomplaint.dwp.gov.uk/

As an Social policy aside - the following may be interested .(JavaScript must be enabled to view this email address) and https://cpag.org.uk/welfare-rights/support-advisers/support-advisers-england-and-wales/support-judicial-review-process/template-letters/judicial-review-pre-action-template-letters-universal-credit

Some more background on MIF’s https://www.matrixlaw.co.uk/judgments/judgment-in-universal-credit-minimum-income-floor-challenge/

Hammer
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Andy,

Thank you so much again for the information you’ve provided.

We will do the holding post and then look at the other options/suggestions and what avenue to pursue additionally.

Not sure if Daphne has the time but if i make no progress will ask her if she can take the matter up.

Thanks again.

Cliff

Andyp5 Citizens Advice Bridport & District
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Good luck with it Cliff!

Daphne
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Hi Cliff

Will definitely take this up via stakeholder channel!

If your client is in agreement do you want to email me details as then they can look into actual case (.(JavaScript must be enabled to view this email address))

HB Anorak
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Have the magic words “mandatory recon” been used in the messages so far? If so, as a twin track approach alongside escalation via Daphne, an immediate appeal can be made on the basis that what you have pasted above is DWP’s answer to the MR.

Hammer
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Hi Daphne,

I was due to speak with the client this morning at 10am but he’s not picked up. Once I’ve managed to get hold of him again I’ll pass on his details to you.

Thanks

Cliff

Hammer
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Hi HB Anorak,

Yes the ‘magic words’ have been used and the DWP reminded of the request on more than one occasion and with the same inane response from them.

I’ll go down the route of the appeal on the basis that their response amounts to the MRN. Thanks again.

Cliff

Andyp5 Citizens Advice Bridport & District
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Extract from a sub and some caselaw re: lodging the appeal Cliff

4. ‘Judge Wikely held in CUC/1389/2019 (paragraphs 20 – 30).  When considering the notification of the decision, that regulation 7(1) (b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013.


5. Provides that the requirement to carry out a mandatory reconsideration before a right of appeal is established only applies where the decision notice includes a statement to that effect. In *********’s case, the decision notice contained only what was written in her journal and therefore the claimant had the right of appeal to the First-tier Tribunal unencumbered by the usual need to apply for a mandatory reconsideration. Please see CUC/1389/2019 attached’.

File Attachments

Hammer
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Thanks again Andy

UB40
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What the risk is here is that UC will argue that what is in dispute here is the claimant commitment. This is because it is the Work Coach’s prerogative to determine the expected hours of work and not a DM elsewhere in the DWP. The claimant has already accepted a claimant commitment relating to the expected hours and MIF but if the ” disputed claimant commitment ” procedure is invoked there is a risk that the whole UC claim including housing costs is terminated. That would be the effect of a second Work Coach making a decision on the MIF hours and agreeing with the original Work Coach.

Hammer
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Thanks UB40.

That is, i think what the DWP are essentially arguing here but have not said as much.

Is termination likely? We think the claimant has a strong case because of significant long-term health issues for a reduction in the MIF.

At present he is also considering ending his self-employment altogether and simply claiming on the basis of ill-health.

UB40
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The claim won’t be terminated unless your client specifically states that he wishes to dispute the claimant commitment created by his Work Coach.

He could though ask his Work Coach for an appointment with the Jobcentre DEA ( Disability Employment Adviser ) for in depth advice regarding his health condition. As the DEA’s these days are largely managers there is a chance that the DEA may come to a different conclusion regarding the expected hours of work and overrule the Work Coach.

In the meantime he just accepts his claimant commitment by clicking the green accept button on his UC account.

Hammer
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Thanks UB40.