Universal credit and disability Simon Osborne September 2018

What we will be covering The structure of UC and UC elements The WCA and transfer to UC UC and severe disability Problems and solutions - Claims and payments - Conditionality - Housing costs contributions - Work and study Overview of the session Structure – outline of how UC deals with disability (= not specifically, more concerned with LCW and LCWRA) Last section on problems and solutions in particular suitable for sharing of experiences – so will need to try and leave sufficient time for that section

The structure of UC Not disability specific – mainly refers to LCW and LCWRA rather than PIP/DLA concepts Standard allowance and elements Elements include LCWRA, carer and disabled child addition to child element But no equivalent to DP, EDP or SDP Brief – setting the scene for next slide UC is not a disability specific benefit. (Does not replace PIP etc.) In the main, refers to work and inability to work (i.e. LCW) and to inability to undertake work related activity (i.e. LCWRA). A few rules refer to PIP, DLA etc. entitlement. In particular UC elements are counterparts of legacy premiums. But they are different and in particular do not reproduce the disability premiums – obvious issue re those that transfer and lose out – later slide.

UC elements LCWRA – counterpart to ESA support component – actually worth more (£75.66 a week) LCWRA = no conditionality, benefit cap exemption, work allowance entitlement LCWRA test is same as for ESA support component Disabled child addition – re DLA/PIP – but lower rate is worth much less than disabled child premium Carer element for ‘regular and substantial’ care = get or would get (but for earnings rule) CA LCWRA is the key element re disability. It is the main route of increase of UC entitlement, and spin-offs include no conditionality, cap exemption and entitlement to a work allowance. Tactical advice = get it!

WCA and transfer to UC Transitional rules apply to both natural and managed migration LCWRA for ESA = treated as having LCWRA for UC on transfer (same applies re LCW) Support component in ESA = LCWRA included from start of first UC assessment period Still in assessment phase for ESA but then LCWRA = waiting period for element is 13 weeks Not a detailed discussion of WCA in UC. In brief: WCA for UC is identical to WCA for ESA. Same issues re descriptors, points, exceptional circs, etc. ESA caselaw should apply. But is a particular issue re people transferring to UC from ESA. Main rule is at reg 19 of the UC TP Regs 2014 Reports of practical problems re UC ignoring these rules and saying UC has ‘nothing to do with ESA’ etc. Point out reg 19 – DWP use (or should use) Form MGP1 to gather info re previous ESA entitlement – but a further problem is that that can take weeks to do

Reapplying the WCA No actual requirement to reapply WCA on transfer from ESA – treated as satisfying it if had done so for ESA But no bar on reassessment WCA reapplied to test for relevant change of circs or mistake/ignorance of fact Transfer whilst appealing WCA failure? No bar on reassessment but in practice may be deferred until appeal decided Reg 19 UC TP Regs clearly provides for ‘treating’ an ESA claimant as having LCW or LCWRA so not absolute need for a new WCA But 19(7) specifically provides that ‘may at any time make a fresh determination’ i.e. reapply WCA More widely under reg 41 UC regs can be reapplied at any time to test for changes/mistakes etc. Reg 41 is worded in a particularly convoluted and complex way. But a basic point is that unlike ESA, there is no UC rule stopping entitlement or stopping LCW simply because work is carried out. Reg 41 is the key and basically uses a threshold to compare earnings against, and then decide whether (1) a WCA can be carried out or (2) if not, then the claimant is treated as not having LCW if the threshold is exceeded. Threshold not exceed = possibly nothing happens, although they can always reapply the WCA Threshold exceeded and on disability benefits or already passed WCA for UC = no automatic treating of not LCW, but may have WCA reapplied Threshold exceeded and not on disability benefits and not already passed WCA for UC = WCA not applied and treated as not having LCW (unless automatically LCW/LCWRA under usual rules eg terminal illness) Where claimant claims UC after WCA failure but maintains appeal, no clear UC rule about what to do (no equivalent to ESA Reg 147A which bars another WCA whilst appeal is pending). Reports of UC holding off when they learn that there is an appeal – but claimant might not want that!

UC and severe disability No SDP (or EDP) equivalent in UC ESA support component + SDP = £101.95pw UC LCWRA element = £75.76pw Managed migration (2019 +) = transitional element i.e. protection Natural migration (now +) = no transitional protection = DANGER! Slide is to illustrate that there are serious worse off issues because of lack of SDP (and where added the EDP) in UC. (RE no DP, no DP in IRESA anyway; and it is true that the UC LCWRA element is worth more than the support component alone; so the problem arises re people who would get the SDP) The particular danger is for those who naturally migrate to UC. Currently, no protection in the rules – NEXT SLIDE deals with planned changes and legal challenges

Challenges and changes Breach of human rights for SDP recipients who migrate to UC on moving home – TP and AR for SSWP Lack of protection re SDP loss in other circumstances? CPAG JR challenge (re after wrongful failure of WCA and lack of protection to value of disabled child element) Draft new rules would prevent SDP recipients naturally migrating to UC Draft rules also provide a ‘transitional SDP payment’ for those already migrated – but not full compensation Full ref for TP and AR is in footnote in pack TP and AR very specifically about claimants who had to make new UC claim after moving home and losing HB. DWP are appealing although have settled with the claimants involved. Do not accept wider breaches have occurred.

Claims and payments Problem “Solution” Claims and payments – difficulty of online claims and maintenance - patchy local services No implicit consent for advisers Special rules – up to claimant to declare terminal illness UC Helpline? Home visits have happened although rare. Local liaison? Specific client group arrangements? Explicit consent possible for advisers – MPs do have implicit consent – appointee? There are more questions than answers! Or, if you like, there are more problems than simple solutions. Chance for sharing of experiences/tips from participants.

Conditionality Problem “Solution” Full conditionality – including full work search Not treated as LCW whilst first WCA pending – conditionality after 14 days LCWRA entitlement or carer (exemption); LCW (no work search) Good relations with work coach! Work search can be reduced in light of impairment where reasonable; for carers if compatible with care and have reasonable chances of work. ‘Complex needs’ assessment before sanction.

Housing costs contributions Problem “Solution” Deduction from housing element for claimant getting PIP daily living/middle high rate DLA care [etc.] Not picked up by current UC software = reliance on monthly manual correction Wrong in law (Sch 4 paras 15 and 16 UC Regs) = possible MR/appeal Some UC staff agree the problem and correct manually UC working on software solution Housing cost contribution = non dependant deduction (set level of £72.16 per month) Not to be made in certain circs These include where claimant gets daily living PIP, MR or HR DLA care (also includes AA, armed forces independence payment, certified blind); or where the non dep is getting one of the specified benefits UC computer systems not applying it Some UC staff will agree there is a problem but have to correct in manually month by month – does not always happen UC understood to be working on a software fix

Work and study Problem “Solution” No permitted earnings rule – how do claimants with LCW know how much work they can do? No LCW assessment yet but sick whilst working – what does UC do? Disabled student but no WCA yet No automatic WCA failure for working – may be retested if earnings above set threshold (16xNMW) Treated as not having LCW if earning at or above threshold – but not if gets disability benefit (eg PIP) Apply for CESA (could ask for UC claim to be stockpiled)