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Defective UC claim but Tax Credits stopped anyway - no appealable decision: advice needed!
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Money matters - North Ayrshire Council
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Joined: 10 August 2010
We are currently awaiting HB appeal papers following SOS terminating HB despite accepting UC withdrawal of claim. Hopefully we will see termination notice confirming how UC Basic Conditions a -d are satisfied.
Todays case is client failed WCA May ‘18 ,reclaimed ESA under pending ESA Appeal, incorrectly refused it (maladministration !) DWP advised claim UC , UC claim made Sep’t18 awaiting withdrawal decision. If withdrawal accepted ESA confirmed will pay ESA arrears from MAY’18.
Issue is his HB which was terminated following UC claim.
If ESA is reinstated from May 18 will the “passporting” of HB override the termination notice? Likely HB will not accept “passporting” as following HB guidance.
Welcome views on HB passporting issue.
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Benefits dept - Hertsmere Borough Council
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Joined: 13 December 2010
See paragraph 8, in this particular case reg 8 (a to d) is satisfied so I think the judge is saying a decision had been made before the withdrawal and the UC stop notice was properly issued because of those set of facts. So doesn’t solve the HRT reg 8 condition problem.
He annoyingly leaves the “withdrawn” claim issue open.
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Money matters - North Ayrshire Council
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Joined: 10 August 2010
I agree he has left the issue of a withdrawn claim still open and the issue of when a UC determination takes place on a new UC claim.
My view is by accepting withdrawal of UC claim under Reg 31 Claims & Payments the SOS has not made a determination in relation to the basic conditions a-d and therefore Reg 8 is not satisfied .This therefore would allow a revision of the termination of the HB claim.
In my previous post I was trying to establish the position if ESA is reinstated would the HB be passported and reinstated ?
Withdrawal of claim
31.—(1) A person who has made a claim for benefit may withdraw it at any time before a determination has been made on it by notice in writing received at an appropriate office, by telephone call to a telephone number specified by the Secretary of State or in such other manner as the Secretary of State may decide or accept.
(2) Any notice of withdrawal given in accordance with paragraph (1) has effect when it is received.
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Benefits dept - Hertsmere Borough Council
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I would say yes, for now at least, as long as you confirm the withdrawal. Will the LA administering the HB agree? That’s entirely another matter.
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Benefits consultant/trainer - hbanorak.co.uk, East London
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ESA can “passport” HB in a couple of ways:
- all income and capital disregarded so the claimant gets full HB. But this requires the claimant to be eligible in principle for HB in the first place
- the date of the HB claim is treated as the date of ESA entitlement where HB is claimed within a month of ESA being claimed. That is superficially attractive in the circumstances you describe, but unfortunately prevented by Article 7 of the No 23 Order which does not allow an HB claim to be made even if it would be treated as made on a pre-full service date in conjunction with ESA/JSA/IS.
So I think “passporting” is a red herring. Reinstatement of ESA in this case would, however, stand as evidence that DWP has agreed that the UC claim was withdrawn before s4(1)(a) to (d) were satisfied, and the Council could rely on that to justify reinstating HB. Indeed, ESA(ir) and JSA(ib) are abolished even if the claim does not proceed as far as s4(1)(a) and (d) being satisfied: these benefits are abolished simply if there is a claim for UC. By reinstating ESA, DWP appears to be saying that it does not consider there was a UC claim at all, let alone one that got over the s4(1) hurdle. The Council may therefore safely assume that the circumstances set out in Reg 8 do not apply and that HB may be reinstated. I think that would be the argument.
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Money matters - North Ayrshire Council
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Jobcentre have confirmed that when a claimant requests the UC claim to be withdrawn they basically close the claim there and then without checking if a determination has been made and if the basic conditions had been satisfied. This raises the questions:
are they applying Reg 31 UC Claims & Payments correctly, appears not !
are jobcentre staff who accept the withdrawal request and close the claim authorised Decision Makers?
They have also confirmed that the UC ID verification had taken place, following verification that is when the HB termination notice has been triggered. This begs the questions is the ID verification a determination or is the determination made after the end of the assessment period.?
Until these questions are answered at FTT / UT claimants are still going to experience problems getting their HB reinstated following withdrawal of a UC claim and may need to remain on UC .
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Generalist Adviser, Southwark Citizens Advice Bureau
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chacha - 12 October 2018 09:39 AMI would say yes, for now at least, as long as you confirm the withdrawal. Will the LA administering the HB agree? That’s entirely another matter.
We have clients who claimed and received one month’s UC. They then ended the claim. Their income support had not stopped. Their TCs and HB stopped.
IS told LA to allow new claim for HB (we are UCFS area). LA allowed it for about 6 mths then changed their minds and attempted recovery. Recovery agreed not to be possible because of official error but the HB stopped.
The MP and the DWP investigated and all are agreed on the sequence of events as I have outlined them above. I wondered today if the LA could recover the wrongly paid HB from IS (joke)
However the point I am making is that whatever goes on in the mind of the DWP when it pays UC then changes its mind and decides to carry on paying IS—this does not bind (or has not so far) the other two agencies involved HMRC and the LA.
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Advice Works, Renfrewshire
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I have read this thread as thoroughly as I can but still have one small question - if the client was unable to use the verify function online and has not been to an evidence interview so therefore not proved they meet the basic condition of being over 18 (even though they are) is there any way at all they can withdraw the claim for UC or wait for the time to expire without going to an ID interview and letting the claim fail then having their ESA reinstated while they await an appeal? I have a client who was advised to claim UC when they were found FFW but they have excellent prospects of having this overturned even at MR and getting their ESA back which included EDP and SDP. Clutching at straws I know.
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Benefits consultant/trainer - hbanorak.co.uk, East London
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I think that is very strongly arguable, yes. No online ID proof = no satisfaction of s4(1)(a) to (d) by machine.
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Tax and Welfare Rights Officer, Equity
Total Posts: 291
Joined: 10 March 2014
Hi everyone,
Wanted to update on where I am now with the case I opened this post with, and get a view on next steps.
1. The claimants have called UC to ‘withdraw’ their claim. The UC telephonist confirmed that their claim would now be closed - i.e. they did not say withdrawn.
2. They have received a letter from Tax Credits asking them to finalise their 2018-19 award. They don’t want to do this.
3. They want to argue that by not attending a first interview they didn’t accept a claimant commitment.
My questions:-
1. Do I run a claim withdrawn argument?
2. There is no apparent decision to appeal unless the claimants finalise their award? Is there any other way of lodging an appeal? There is nothing else they have in writing saying that their tax credit claim has stopped.
3. I have run a dummy UC claim and printed off the last section of the claim re. claimant commitment and attach it to this post - is this enough to satisfy reg (4)(1)(e) WRA 2012 (basic conditions)?
Any appeal would basically be challenging judge Jacobs decision and I am not 100% that there is any room to effectively challenge it.
Any thoughts as always gratefully received,
EKS
File Attachments
- Claimant_committment_UC_page.pdf (File Size: 463KB - Downloads: 2449)
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Tax and Welfare Rights Officer, Equity
Total Posts: 291
Joined: 10 March 2014
Does anyone know more about the facts of CTC/1276/2018 - in particular whether the claimant in CTC/1276/2018 went to the job centre to verify her identity after the claim was made?
Or - what was meant when Judge Jacobs referred to ‘all that was required was an explanation of the system that led to the [stop] notice being issued’ ?
Can we get this explanation?
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Welfare rights worker - CPAG in Scotland
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Joined: 17 June 2010
Hi EKS
It looks like the claimant was unrepresented in that case and I don’t know any way of getting further specific details. It might be worth a FOI request to DWP to see what a general ‘stop notice’ looks like and any procedures around that.
I think the claimant commitment question is a bit of a red herring because the SoS only needs to be satisfied a UC claim has been made and that conditions (a) to (d) are met - not (e). However the verify ID argument seems valid. Just because someone has declared in an online claim that they are of the correct age, in Great Britain and not receiving education cannot mean the SoS is actually satisfied that they meet these conditions - this would leave UC open to fraud so there has to be some other process to check this before being satisfied and the stop notice is issued.
One good thing about CTC/1276/2018 is that at least it considered whether HMRC were correct to terminate tax credits but as you say it was wrapped up in an appeal against the final section 18 decision so it would seem difficult to lodge an appeal without this - or judicial review.
Mark
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Tax and Welfare Rights Officer, Equity
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Joined: 10 March 2014
Hi Mark -
Thank you so much for your response - really helpful. I will follow up on the points and re-post in due course.
Didn’t realise it was (a)-(d) not (a)-(e). Damn.
Best,
EKS
I’m thinking as I type here - but interested in Mark’s thoughts on this.
The only way I can see to challenge this is to allow HMRC to make the finalised decision and then appeal it on the grounds that it isn’t a valid decision. As far as we can tell, there is Tax Credit legislation that requires HMRC to issue a notice when certain decisions are made but the termination power is in the Transitional provision UC regs. We can’t see any requirement to issue a notice when the TC claim is terminated in that situation.
So there will be a s.14 initial tax credits decision for the tax year (possibly a section 15 if there has been another change in the year) - then the termination of the payments under the transition regs - then the s.18 decision. My understanding is that HMRC can only follow the in-year finalisation process where the same test has been met (they must be satisfied that the basic conditions of UC have been met).
If iit can be shown DWP had not satisfied themselves the basic conditions had been met, then there is no power for HMRC to in-year finalise (and issue the s.18 notice) nor would there be power for HMRC to terminate the payments. So the original s.14 decision would seem to remain in force.
Victoria
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Welfare Rights Adviser - Southwark Law Centre, Peckham
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Mark Willis - 31 October 2018 11:28 AMHi EKS
It looks like the claimant was unrepresented in that case and I don’t know any way of getting further specific details. It might be worth a FOI request to DWP to see what a general ‘stop notice’ looks like and any procedures around that.
I think the claimant commitment question is a bit of a red herring because the SoS only needs to be satisfied a UC claim has been made and that conditions (a) to (d) are met - not (e). However the verify ID argument seems valid. Just because someone has declared in an online claim that they are of the correct age, in Great Britain and not receiving education cannot mean the SoS is actually satisfied that they meet these conditions - this would leave UC open to fraud so there has to be some other process to check this before being satisfied and the stop notice is issued.
One good thing about CTC/1276/2018 is that at least it considered whether HMRC were correct to terminate tax credits but as you say it was wrapped up in an appeal against the final section 18 decision so it would seem difficult to lodge an appeal without this - or judicial review.
Mark
I think the issue is fact sensitive.
1. The stop notice is computer generated and is issued automatically once the online claim is completed. That is how it works. I have seen a number of cases where a claimant’s HB has stopped because of the LA’s receipt of the stop notice - only for the DWP to decide a couple of weeks later that the client does not have a right to reside (i.e. is treated as not being in Great Britain). Clearly, in those cases, the Secretary of State had not satisfied herself that the claimant was ‘in Great Britain’ at the time the stop notice was issued as basic condition s. 4 (c) of the WRA 2012 was subsequently determined not to be met. And that can only mean that reg. 8 (1)(b) of the UC (TP) Regs 2014 was not satisfied so the HB award was not properly terminated.
2. I think that will also be the case where an EU claimant withdraws their claim prior to their habitual residence interview. I say this because every single EU claimant I have come across, even those with the most clear cut right of residence, has to go through the hab res interview as part of the UC claiming process - and that interview is integral to the process of the SoS determining whether the claimant is in Great Britain. Certainly have won a couple of FtTs on that basis (this may also work with claimants who are non-EU but also non-UK nationals, but I don’t see enough of those to be sure about the process they are put through).
3. But claimants will be asked to verify their ID online via the UC claim process and the YouGov website - this involves entering valid dates of birth, NI numbers and passport numbers. And very many people (certainly very many UK nationals) will be able to do that. Once/if a claimant does this successfully, I think it going to be difficult to argue that condition 4 (c) is not satisfied because the claim was withdrawn before the ID verification appointment at the Jobcentre. That interview is really about verifying that the claimant is in fact who they say they are, rather than establishing whether the person whose details have been given in the UC claim is or is not in Great Britain (i.e. whether or not they have a right to reside).