David, Will and Maria talk about the cost of living payment; latest PIP statistics; NI credits as a route to LCWRA in Universal Credit; fit notes to be issued by nurses and other healthcare workers; ESA work capability assessment outcomes and MR statistics.

David: [00:00:04] Hello. It’s our July benefits newscast. This time it’s me, Will Hadwen and Maria Solomon. Will works for CPAG Scotland when not training. Maria works for an independent advice charity in Leeds. And when I’m not training, I work for the Belay Foundation, which is an adoption charity. So we’ve each brought three things with us. We’ve looked through the news, we’ve thought about our work and the things that come across our desk and the things we’d like to share with you. Will, the three things on your list, please.

Will: [00:00:45] Yes, the three things on my list are the cost of living payments, which I suspect may also be on Maria’s list. But we’ll see. I’ve also got a decision about limited capability for work moving from ISA to Universal Credit. And finally, I’ve got some PIP statistics.

David: [00:01:13] Very good. Thank you. Two of those on my list. Maria, what are your three things?

Maria: [00:01:22] I’ve also got their cost of living payments. But then I’ve also brought two topics that seemed to be cropping up quite a lot at work at the minute. And the first one I’ve headed work capability assessment, complex needs and substantial risk. Is it a missed opportunity?

Maria: [00:01:42] And the next one that I’ve got is, why is my tenancy not good enough?

David: [00:01:47] Oh, curious. Why is my tenancy not good enough. Well, I’m very interested in that. Maybe we’ll start with that one. My three things were or are the cost of living crisis and the payments, the PIP statistics, which I think was on Will’s and similarly the work capability assessment statistics in ESA. But Maria, I’m curious, why is my tendency not good enough? Well, maybe you can tell me.

Maria: [00:02:20] Yeah, well, we’ve just come. It’s the usual thing where Universal Credit, in looking at whether they can award the housing element or not, have decided that the tenancy provided are the written agreement or the proof of rent is not good enough and therefore they cannot award the housing element. And then, of course, there’s a whole issue of the verification. So then they use sometimes use that to then say, historically you’ve also not been entitled to the housing element and so they raise and overpayment as well. So we’ve had quite a few cases come through at various levels, so we’ve had ones where it’s the initial claim and they’ve not accepted the written evidence provided by the landlord. But then we’ve also got one whereas an appeal last week where Universal Credit decided that the tenancy agreement, because part of it was typed up and then amendments had been made in handwritten handwriting, that that showed that it was not a true tenancy agreement that it was it was they were hinting it been a fraud, that the claimant had actually invented this agreement.

David: [00:03:36] So this kind of I mean, this is sort of crossing with some other things that we’ve discussed recently, I guess, in terms of fraud, because, I mean, there’s some stats out as well, I think, at the moment about fraud and it being very high. And so the DWP, it seems kind of it gives you the impression that they’re just sort of trying to say no to as many people as they can as a way of kind of tackling what they think is could possibly be wrong. So how do you go?

Maria: [00:04:01] Yeah, go on. Yeah, the right. But the problem is, is that, of course, under COVID, they’ve allowed these claims to go through so that it raises quite a large overpayment of arrears. So there’s several things going on. The first thing is, is that the evidence needed. You can push that we’ve pushed for like say we have an escalation team and a partnership team to try and get it resolved that way. But ultimately it’s trying to get it to a tribunal because then you actually get some sense in the matter where it’s waiting to get to that point. And so it’s pushing it to try and get decisions made as quickly as possible so you can get to an appeal hearing. So then try and escalate at the tribunal to hear it as quickly as possible to prevent the rent arrears not building up to such an extent that the landlord starts taking action.

David: [00:04:50] Okay, so this is what I’m interested in because there’ll be lots of people out there, advisors dealing with the same thing. And I think what you’re saying is it’s kind of a two pronged approach. It’s working locally with your local contacts to get a decision made as quickly as possible, and then it’s trying to get it through the appeal system because of course, this decision carries a right of appeal, mandatory reconsideration and appeal. Yeah. Okay.

Maria: [00:05:13] And what we found as well is that if we actually communicate with the landlord, they will provide additional evidence. So in the case that we had at the appeal, the tenancy agreement was not accepted. And they said that it didn’t show any sort of sort of three elements to claim the house element of liability occupation. None of that was satisfied. So we had to then communicate with the landlord. So I contacted the landlord and they gave additional information, so they explained why they’d put some handwritten amendments on the tenancy. Okay. And they explained that they didn’t know the person that they’d actually let the property to. So there was no issue of being contrived. Or, there’s no history there. It’s just two strangers, a landlord and a tenant. And that the tribunal judge found that evidence compelling then so that then there’s other issues going on. So we couldn’t actually get a decision then. But that also then indicated to the presenting officer that it’s likely that at the next hearing it’ll be found in the claimant’s favour.

David: [00:06:23] Okay. So you’ve got to do your homework, is what you’re saying. Getting, getting it all prepared, including evidence this time from the landlord.

Maria: [00:06:32] Just to explain. Yes. And those discrepancies. But then alongside that is the issue of the overpayment then and that raises other issues of on what grounds as they actually gone back to raise that overpayment. And in this case, I don’t even think there’s an I don’t there’s a decision. I do not think there was a decision made that says they could go back to, let’s say, March 2020 to say there’s no entitlement from that day. I think they’ve used the entitlement decision made today, in effect, and just said, oh, if you’re not entitled today, we do not entitle yesterday, we’re going to raise an overpayment. So it’s just this. When I asked the presenting officer, where’s the decision, she couldn’t find it within the UC account because of course this case unfortunately for us because of all of the issues that the case was closed down. So we didn’t even have an access.

Maria: [00:07:25] To actually any of the decisions on the UC Journal. So you’re just ringing the call centre to try and piece things together.

David: [00:07:30] Got it.

Will: [00:07:31] Absolutely typical because we’ve had loads of cases like this as well. And what’s happened is there hasn’t actually been a revision. They’re saying that the overpayment goes back to the beginning, but there’s been no revision, so that can’t be true. 

David: [00:07:48] That’s a technical thing.Right.

Will: [00:07:48] So that’s technical. That’s technical. But it means that they have not made a decision as to from what point was this person not entitled? They’ve just, as Maria said, extrapolated from what they’re finding in the now.

David: [00:08:01] And just thinking about, you know, extending this further, explaining this further, because this is something that is not just about the housing element, is that this is about all, you know, ID. And yeah, it’s, you know, a problem which we’re seeing a lot. So it’s just thinking about other advisors dealing in similar situations. It should be the same approach, right, in terms of escalating, trying to get the decision made as soon as possible and then getting it through the appeal system. Is that right? Anything to add on that before we move on?

Will: [00:08:30] I would just add that sometimes the evidence that the DWP say is not good enough is evidence that the client is actually in occupation, is living at the property. So we’ve had clients turned down when they’ve recently moved in, so they haven’t yet had a utility bill. And it’s all a nonsense because they’re being asked to provide something that they don’t yet have.

David: [00:08:50] Okay, thanks. Let’s move on to what’s a really topical one and an important one. And I think we can help clarify a few things here. So, Will, turning to you, the cost of living payments is on your list. I’m really keen to hear from you on that.

Will: [00:09:05] Yes, I’m still waiting to hear from anyone who’s actually received it. But they say that they started making the first instalments to people on means tested benefits and they should finish that, I think, by the end of the month. And then the second payment will be in the Autumn. But we don’t know the qualifying date for the second payment. They’ve also issued a bill for these payments which is quite helpful because you can see exactly what they mean, what the intention is. And the good thing about that is that I think it confirms that it includes backdated entitlement. So if you were entitled on the 25th of May to one of the means tested benefits then, you would get this help and tax credits just say that that means you have an award for the tax year of at least £26 because tax credits are not a weekly or monthly entitlement. So that’s really clear. And it’s also clear for the qualifying disability benefits as well, which will often be backdated because we know that PIP takes such a long time to be decided sometimes.

David: [00:10:18] That’s the extra £150.

Will: [00:10:22] That’s the extra £150. Yeah. Just to be clear, we’re talking about £600 altogether. Sorry, £650, £650 altogether for people on means tested benefits and an extra £150 for people on disability benefits. And some people will be entitled to both of them.

David: [00:10:41] Okay. And we’ll put the links in in on the website so that people can check this in terms of the dates. One of the things that caught me out with this, I think was around Universal Credit, because I’ve been advising some people to make claims recently. And when I heard the announcement and the date, which was I think 25th, 26th May, I thought, oh yeah, that’s going to include many of my clients that I’ve just been speaking to about recent claims to Universal Credit. But but it’s only where the assessment period has ended between 26th April and 25th May. Right. So if you’ve claimed sort of around that time, your first assessment here is going to finish.

Will: [00:11:16] Later or later.

David: [00:11:18] So I got caught up by that. That was nice. And just to check with you, but I’m sure you’re right on this, but I’ve my note says it’s the first payment is from the 14th of July. So we might want to check that and we’ll get that. Sure. Sure. We’ll put it in our in our notes or in.

Will: [00:11:34] Do you know what? You’re absolutely right. It is 14th of July.

David: [00:11:36] Okay.

Will: [00:11:37] I think I just got confused by the press release, which seem to say that they just started. But. Yeah, no, you’re right.

David: [00:11:42] It is. Okay. Yeah, very good. Okay, let’s turn to another one of yours, Maria. So you were talking about issues in your work and including the work capability assessment complex needs and substantial risk rules, which is a really important area, isn’t it, and something that we can sort of flag up for people. So do you want to sort of just explain a bit more about what you’re seeing?

Maria: [00:12:06] Yeah. Again, we’re getting quite a few clients where we’re coming through and it’s just screaming out to me that this client could satisfy substantial risk in the sense that they could be automatically treated as satisfying the limited capability for work or work related activity part of the WCA. But that’s been missed by Universal Credit. So, clients aren’t thinking that they have complex needs. In one case, Fit Notes were being submitted, but because of the needs of the client, that was sporadic. So the WCA wasn’t being picked up on at that point. For the other client, Fit Notes were being because it was a long term one the WCA had been triggered. But nothing had been picked up about the needs of the clients. And even though these clients had social workers had mental health service involved, those services are not told UC about the needs of the client, probably because they didn’t understand or know about that. And the client themselves was in no position to inform UC, about what their needs were. If you met the client, it would be obvious. But of course, because it’s an online system that face to face contact and that obvious need can be missed.

Maria: [00:13:33] So when we picked up these cases and we could see the high degree of need these clients had. We got the social worker mental health team to write a letter covering what the health conditions were and why they were at substantial risk, i.e. if they were treating someone who’s fit and able to work or had to see a work coach that would make their condition much worse. Then with that letter, we made a note on the UC accounts and uploaded the letter of support asking that substantial risk be considered. Of course, everything went quiet, as it always does. So then we had to push again by the escalation team and our partnership team for a decision maker to look at the case. And in those instances the client was put into the LCWRA route without even having to fill out the UC 50 form. And in one case the client had been sanctioned as well. Okay. So the sanctions were then overturned as well.

David: [00:14:41] Good. So there was a positive outcome in the end, but only with your intervention. And I guess I’m thinking about those people that perhaps haven’t been on our Limited Capability for Work course, which focuses on on this and all the other sort of relevant issues. This is where someone might satisfy one of the 16 descriptors under the limited capability for work related activity assessment, or if not, might be treated as having done so on the basis of there being a risk, a substantial risk to either themselves or to anybody else, you know, in any kind of of a work environment, right. Including work related activity sort of environment. So that’s that’s the issue at hand. And what you’re saying, I guess, is that it’s not being picked up by Universal Credit. Sometimes the work capability assessment isn’t being triggered at all, and you’re basically sort of making it happen on their behalf.

Maria: [00:15:34] And so it’s like a call out to people really just to because I think we underestimate the importance of substantial risk. So it’s just that if you see anybody who has got, you know, the mental health team involved or there’s been a history of self-harming or but you know, to always think in your mind, can I get can I apply the substantial risk rule? Can I help this client get through the WCA as quickly as possible with as less stress as possible and then with less risk of sanction as well? And I think you see our poor at picking up these clients because in one case the client actually went to the offices and looking at the usage, you could see them saying their appearance looks disheveled, you know, not engaging. And yet again, there was no note put on their UC journal as like an alert, you know, to say it’s a complex needs case.

David: [00:16:35] Okay, good. And so we will share some links for that. If if people are wanting to know more, they’ll be able to check out those links as part of this newscast. But I guess also, if it’s something that is important to you, if it’s if it’s relevant to the work you’re doing, then perhaps consider coming on our Limited Capability for Work course. Good. Thanks, Maria. So Will, on both of our lists were the PIP statistics. So that caught my eye as well. Do you want to sort of run through what you noticed on that?

Will: [00:17:11] Yeah. So the reason that I found this very interesting was I’ve been dealing with some cases where people were moving from DLA to PIP and they would be entitled to a higher award of PIP. The longer it takes to make the PIP decision, the more time before they are going to get their extra money. Because the DLA runs until it’s four weeks after the DLA payday after the PIP decision. So there’s a long time before you’re going to get your increased award. So there are lots of things about how long it takes to consider these. For a DLA transfer, it’s 22 weeks. Okay, it’s slightly different for completely new claims. The other thing that’s really stood out to me was about the length of awards. 77% of awards are for less than two years. So that’s putting our clients into this horrible cycle of going round and round, having to fill out review forms or make new claims. So that really struck me. And then the other thing that struck me was mandatory reconsideration still don’t have a high chance of success. But when you look at appeals that are lapsed because of a decision favourable to the claimant, that’s 19% of registered appeals and that’s for the quarter before these most recent stats. So yeah, it’s not because the DWP are making great decisions.

Maria: [00:18:40] And yeah, it’s going to say it used to be that they used to say that they believed that there was a higher success rate of tribunals because medical evidence would be provided, you know, at that later stage. But that doesn’t ring true here. If it’s 19% because it’s, you know, it’s likely to be the same evidence, isn’t it?

Will: [00:18:57] Most people who are unrepresented will just be sent during the same thing as they did at MR. Yeah, yeah, yeah.

David: [00:19:04] I also noticed that of the outcomes, a third either of the review outcomes either a third either go down or reduced, the rates reduced or stop entirely. So and with those short awards, I mean, obviously this is an opportunity for delivery to review and stop them or reduce them. And then when we look at the mandatory reconsideration statistics and the appeals statistics, it’s a reminder that we ought to be ensuring that people do exercise their rights of appeal. Right.

Maria: [00:19:36] Well, it’s like it’s trying to wear people down, isn’t it, because they know that they’ve got a good chance. That’s success at appeal. So how else can you sort of like stop the tide going through? And it’s just like, repeat. Just making them reclaim and reclaim. Yeah.

Will: [00:19:48] Somebody said that to me yesterday. She basically said, I don’t see the point in appealing because my dad appealed. And then literally the following month or something, he got another adverse decision. And it was it was trying to support this client and to convince them that actually it was worth doing it all over again. And yeah, I understand where she was coming from completely.

David: [00:20:11] It’s a lot of work, isn’t it? It’s a lot of a lot of time.

Maria: [00:20:16] And it’s that feeling of not being believed as well, I think as well. So have clients that are refused benefit. It’s like they’re lying about their condition and it’s a fair. Yes, it’s a psychological effect of that.

Will: [00:20:26] Yeah. Yeah.

David: [00:20:28] Okay. Well, I think both you and I had the limited capability for work statistics in ESA. We won’t get a chance to talk about those, but we’ll include them in the sources.

Will: [00:20:40] It was just you, actually. I didn’t know that. Oh, you.

David: [00:20:43] Didn’t have that? Oh, it was just me. What was the one that I haven’t asked you about then?

Will: [00:20:46] So I had a case that was really relevant to my clients again. So I get a lot of clients asking about when the limited capability for work related activity elements should be included in UC. And we’ve always advised that if you are coming from ESA and your ESA stops, but the only thing that makes your ESA stops is something like income or capital or a partner working. So you then have an entitlement to credits, national insurance credits for limited capability for work. It’s been no intervening decision to say you don’t have that any longer. You still have limited capability for at least activity status. And then later on you come in, you can either UC, then that element should be there from the beginning. And basically that’s what this case says and it agrees with that position. So if that’s what you’re advising your validated, that is what to advise.

David: [00:21:40] So if people are working with universal credit claimants who have had a previous claim to ESA, it’s always worth checking that and and and perhaps contacting us for support.

Will: [00:21:52] Of course if they’re not if.

David: [00:21:53] They’re not sure because it could be that it should be included from the beginning, from the first assessment period.

Will: [00:21:57] Yeah. Yeah. It points out you don’t have to have a very specific application for credits. Your previous claim for ESA was treated as an application for credits essentially, and nothing stops that being the case.

David: [00:22:08] Got it.

Maria: [00:22:09] So is it a new style ESA, though? Are the old style? Yes, they were the old style. Yes.

Will: [00:22:14] Style, yes, ESA. Because if new style ESA stops, say, because it runs out and then you get an LCW determination it should come back. So it’s not the same sorts of things. Stopping ESA means you wouldn’t have the same set of circumstances.

David: [00:22:33] So it’s always a bit more complicated. And if you’ve got any of those, of course contact us and well, or one of our other Will or Maria or one of our other trainers will be very happy to talk you through it. Just before we finish, I also had just because it’s coming up and it seems very relevant, fit notes to be issued by nurses, OT’S, pharmacists and physios. So we’ll put that in the link as well just so that people can see that. Thanks very much. Both Will and Maria. Fabulous. Very quick reminder to everybody that our advice service is available. If you’ve attended training with us in the last 12 months, that’s advice@benefitstraining.co.uk and our update webinars are also available to you there every three months. The next one is on the 14th of September. That’s a Wednesday. That’s a 60 minute live event, which you’re invited to at no further cost. If you haven’t been on training with us, of course, in the last 12 months, you can find details of our courses on our website. Once again, thanks both Will and Maria wish you well and everybody else. See, see sometime soon. Bye.

Will: [00:23:34] Thank you.