Claiming UC: now and under managed migration – “the one in five” failure rate  Martin Williams September 2018

Topics Background: Overview of claims process- legal and practical “Closing” claims- 1/5 failure rate Applying all of that to: Draft managed migration rules on claiming ESA pending appeal can still be problematic as DWP may still regard as a new claim. But it is not – reg 3(j) Claims and Payments Regulations 1987 makes it payable without a claim 2

Claims Process How is a claim made? Manner of claim From what date is a claim made? Date of claim How do manner of claim and date of claim rules work out in practice? 3

Manner of claim (dealing with electronic claims only) Universal Credit etc. (Claims and Payments) Regulations 2013 (SI No. 380) [slightly reworded as shown in square brackets] 8.—(1) […], a claim for universal credit must be made by means of an electronic communication in accordance with the provisions set out in Schedule 2 and completed in accordance with any instructions given by the Secretary of State for that purpose. (3) A[n electronic] claim for universal credit […] is defective if it is not completed in accordance with any instructions of the Secretary of State. (5) If a claim for universal credit is defective the Secretary of State must inform the claimant of the defect and of the [date of claim rules]. (6) The Secretary of State must treat the claim as properly made in the first instance if— (b)in the case of a[n electronic] claim […], a claim completed in accordance with any instructions of the Secretary of State is received at an appropriate office, within one month, or such longer period as the Secretary of State considers reasonable, from the date on which the claimant is first informed of the defect. 4

Can you make a defective claim online? “(3) A[n electronic] claim for universal credit […] is defective if it is not completed in accordance with any instructions of the Secretary of State.” BUT….. The online system forces a claimant to complete every box and to confirm details given before the “submit claim” button appears. DWP maintain that giving a wrong answer by accident or deliberately does not mean the form is not completed in accordance with the instructions. They do concede that nonsense answers might render the claim defective. THIS MEANS….. Claimant who creates an account and then takes a week to work through answers is only paid from when clicks “submit claim”. HOWEVER….. It may be worth considering at what point the claim is actually made…. Is it only once the “submit claim” button is clicked? 5

When is the claim made? (1) DWP appears to treat a claim as not made until the whole form has been completed and the details checked Once an online account has been created the next button a claimant clicks is: Is a claim made when you click “Make a claim”? 6

When is the claim made? (2) If the claim is made at that stage then DWP are not applying the correct rules on determining when the claim is made. A partially completed form would be defective…. “(3) A[n electronic] claim for universal credit […] is defective if it is not completed in accordance with any instructions of the Secretary of State.” That would require: “(5) […] is defective the Secretary of State must inform the claimant of the defect and of the [date of claim rules]. (6) The Secretary of State must treat the claim as properly made in the first instance if— (b)in the case of a[n electronic] claim […], a claim completed in accordance with any instructions of the Secretary of State is received at an appropriate office, within one month, or such longer period as the Secretary of State considers reasonable, from the date on which the claimant is first informed of the defect.” 7

When is the claim made? (3) We must also have regard to the Schedule 2 provisions because by reg 8(1) a claim: “must be made by means of an electronic communication in accordance with the provisions set out in Schedule 2” Para 4(3): “(3) Any claim or information is not to be taken to have been delivered to an official computer system by means of an electronic communication unless it is accepted by the system to which it is delivered.” The definition of “official computer system” in reg. 2 would include the system that stores an electronic claim that has not yet had all its boxes completed. But… By Para 2 a person may only use an electronic communication where they use an “approved method” of submitting the claim- approved methods are set out in directions of the SSWP- what has the SSWP directed? 8

SUMMARY OF MANNER OF CLAIMING If a claim is, as a matter of law, only made when “submit claim” is clicked then defective claims do not meaningfully exist. If however, a claim is made (albeit defectively) when “make a claim” is clicked much earlier then SSWP is wrongly determining when claims are in fact made and not applying the defective claim rules properly. That is all important for two reasons: Claimants are only paid (absent backdating) from the “date of claim” which is, generally, date on which claim is made or defective claim treated as made. This will become even more important once managed migration comes in (as claiming within a certain time proposed as needed to get transitional protection). 9

Date of claim 10.—(1) Where a claim for universal credit is made, the date on which the claim is made is— (a)subject to sub-paragraph (b), in the case of a claim made by means of an electronic communication in accordance with regulation 8(1), the date on which the claim is received at an appropriate office; (b)in the case of a claim made by means of an electronic communication in accordance with regulation 8(1), where the claimant receives assistance at home or at an appropriate office from the Secretary of State, or a person providing services to the Secretary of State, which is provided for the purpose of enabling that person to make a claim, the date of first notification of a need for such assistance; [(c) and (d) are for telephone claims] or the first day in respect of which the claim is made if later than the above. (2) In the case of a claim which is defective by virtue of regulation 8, the date of claim is to be the first date on which the defective claim is received or made but is treated as properly made in the first instance in accordance with regulation 8(6). 10

Backdating… Reg 26 UC etc. (C&P) Regs: One month maximum. Allowed if unable to claim earlier due to very limited circumstances: Previous JSA or ESA and not told that ending. Illness / disability Couple/single claim issues Note UC(TP) Regs add previous IS, HB, TC receipt and not told ending to mix (reg 15). Potential discrimination challenge: pregnant women? 11

“Closing claims” 1/5 failed to get claim off ground– FOI-2025 “For UC Full Service claims made (declared) in November 2017 from analysis carried out in March 2018: 71% of claimants were paid. 29% were closed and not paid and are made up as follows: (all shown as % of the whole): Of claims refused:  8% were process compliant but closed due to non-entitlement [….]  20% were closed due to non-compliance with the process. […]: 10% Failed to book an initial interview; 6% Claimant commitment not accepted; 4% Failed to attend an interview” 12

“Closing claims” Why are claims failing in this way? What joy in getting help from JCP to make claim? (see reg. 10(1)(b) which implies should be available)? Do people have examples of access issues precluding interviews or completing claim in first place? 13

Legal basis for “closing claims” when fail to book interview? There is no legal concept of “closing a claim”: A claim for benefit is a request for an award of that benefit to be made. This can only result in a decision under s.8(1)(a) SSA 1998 to either make an award or refuse to make an award. So can you refuse to make an award when the claimant does not book interview within a month? Possible grounds: Reg. 37 C&P Regs? – failure to provide information within a month or such longer period in connection with a claim – equivalent provision in old regs always held not to provide independent ground for refusal -R(IS)4/93; CIS/51/2007; MS v SSWP (JSA) [2016] UKUT 206 (AAC) Part 5 D&A Regs? (SI 2013/381)- Supersession and termination only applies to awards. There is no award in such a case. ARGUABLY THEREFORE ANY CLOSE CLAIM DECISION OF THIS NATURE IS WRONG… Of course if conditions of claim not shown to be made out by claimant then can refuse to make award…. But on challenging that would just need to show conditions met and not reasons for not attending appointment. 14

Practical advice on challenging closed claims Print out any journal that claimant still has access to for a closed claim. Call UC helpline to establish previous claim attempts. Make new claim (old journal now disappears for claimant). First entry in journal: “Mandatory Reconsideration Request against decisions to “close claims” dated…..” DWP will in practice accept as wrong any claim closed decision made less than a month after claim submitted. Will need to further challenge any where the decision was more than one month after on basis that does not provide independent ground for refusal (see above). If due to access issues etc. consider disability discrimination referral? 15

Claiming UC and managed migration Draft regulations – The Universal Credit (Transitional Provisions) (Managed Migration) Amendment Regulations – SSAC consultation closed and report awaited. Workshop assumes regs go through as drafted. Importantly this means: Claimants only have a month from when notified to do proper claim. Failure to do this leads to loss of transitional protection offered in regs. Will we see 1 in 5 people failing to get a claim off the ground under managed migration? 16

The managed migration process for claims SSWP can at any time issue “migration notice” to existing claimant- reg 44 (UC(TP) Regs). Notice should say (a) existing benefits to terminate (b) deadline day by which UC claim must be made. Deadline day must be at least one month after day on which notice issued. Both members of couple must get notice. Notice can be cancelled at discretion of SSWP. Deadline day can be changed if claimant requests (or own initiative)… should be informed of new day (not clear whether the one month applies to this). If UC not claimed by deadline day then existing awards terminate (save for 2 week runon of HB or specified/temp accommodation). Separate rule for those who are not couples or single for UC but were for legacy. 17

Managed migration: claim deadline and TP Only “qualifying claims” get TP. Reg. 48 defines “qualifying claim”: Claim must be made on or before deadline day or award backdated to commence on or before that date; and Claimant cannot have made a defective claim which has not been perfected in period between date of notice and date this new claim was made; and Claimant cannot have made another claim for UC between those dates and failed to provide information requested under reg. 37 by SSWP within a month or such longer period. The final point is aimed at excluding those who don’t turn up to interview and then reclaim from TP…. The claimant’s remedy would be to challenge any refusal of that particular claim. 18

Backdating change for managed migration… Draft regs add “official error” as reason for backdating in a managed migration case (would encompass wrong advice etc). 19