Is Regs re looking after family member who is temporarily ill/ temporarily absent from home.Provision still available under UC?

We have a query that we are hoping you can clarify.

Under IS Regs Sch 1 B paras 3 a number of the parents we advise are entitled to claim Income Support. This is often because they are caring for a child or qualifying young person who is ‘temporarily ill or is temporarily absent from his home’ as opposed to ‘regularly and substantially engaged in caring for another person’  and a qualifying benefit is claimed or entitled to. The first provision has been particularly important when a child does not qualify for DLA and there has been a sudden change of circumstances that impacts on the ability to earn income – child becomes ill and a parent has to be with them while admitted to hospital often for significant period of time.

We have been looking through the WRA to see how – if at all- this provision is protected under Universal Credit. We are struggling to find in particular regulations that protect the ‘ temporarily ill or absent from home’ basis for entitlement and any associated definitions. Universal credit s19 of the WRA specifies that claimants are subject to work related requirements unless of a ‘prescribed description’ which seems to include having ‘ regular and substantial caring responsibilities for a severely disabled person’. This relates closely to the second provision above.

Much of the regulation appears to be based on discretion in this area – the words ‘may include’ are used frequently! What we need clarification on in particular is :

(1)  Does it state anywhere in the Act that UC can be claimed on the first provision above and if so where? If so is this then a prescribed condition for work related requirements ( and therefore exempt from compulsory Claimant Commitment’ ) ? If not included on what basis would a claimant be able to claim under these circumstances ?

(2)  Is ‘regular and substantial caring responsibilities for a severely disabled person’ defined in the WRA legislation? Does this imply or state anywhere that the person cared for has to be entitled to or claiming qualifying benefit or claimant receives / entitled to CA?

(3)  If there is the level of discretion implied then is there current DWP guidance on work related requirements/ compulsory claimant commitments available that may give the parents we advise arguable grounds of entitlement for the temporarily ill or is temporarily absent from his home’?

Many Thanks

Susannah Fayers
Caseworker
CAB
Great Ormond St Hospital

Hi Susannah, you said you’ve been looking through the WRA but make sure you also check the UC Regs as this is were all the detail will be that you’re looking for: http://www.legislation.gov.uk/uksi/2013/376/contents/made

One thing to note is that with UC, a claimant doesn’t need to worry so much about whether they come within a certain category of persons who can claim, as they would under IS. Just about everyone will claim UC. The level of conditionality that applies to a person will however be determined by the category they fall into.

In terms of your questions, Reg 99(5)(b) might be relevant to your issue about caring for those who are temporarily ill.

Reg 30 defines regular and substantial caring (basically the same definition as for CA but would also include someone who has earned income over the CA limits).

There is also the concept of “relevant carers” which is defined in Reg 85. This seems to cover people who wouldn’t meet the Reg 30 definition but still have some caring responsibilities. A relevant carer can have their expected hours per week reduced in line with their caring responsibilities but still have to demonstrate they have reasonable prospects of getting employment (Reg 88).

Both possible solutions above still require an exercise of discretion from the SoS so it would be difficult to say a person could definitely rely on these. I’m not aware of any guidance yet on how they will be applied in practice.

Hope that helps!

Thank you that really helps in putting us on the right road. We have spent a lot of time having to argue with DWP re IS provision so anticipate will be doing the same with UC. So want to be clear on all grounds and argument for appeals, discretions, complaints and anything else that comes to mind!

Susannah