Michael, Will and Pamela discuss; Third party deductions judgment; Erosion of transitional element for carers with LCWRA; Transitional Element Erosion cannot occur in the first assessment period; Evidence for LCWRA element ‘relevant period’; LCWRA Risk NI Caselaw; Enhanced support for irESA claimants with migration notices; Call for evidence on job centre reforms.
Third party deductions judgment
Nathan Roberts v SSWP [2025] EWHC 51 (Admin)
https://www.bailii.org/ew/cases/EWHC/Admin/2025/51.html
Erosion of transitional element for carers who start to get LCWRA element should be difference between LCWRA & carer element
Transitional Element Erosion can’t occur in the first assessment period
https://www.legislation.gov.uk/uksi/2014/1230/regulation/55
(2) The amount of the transitional element to be included in the calculation of an award is—
(a) for the first assessment period, the initial amount.
(b)for the second assessment period, the initial amount reduced by the sum of any relevant increases in that assessment period.
(c) for the third and each subsequent assessment period, the amount that was included for the previous assessment period reduced by the sum of any relevant increases (as in sub-paragraph (b)).
Evidence for LCWRA element ‘relevant period’
KS v The Secretary of State for Work and Pensions: [2025] UKUT 015 (AAC)
Reg 2(1A) Social Security (Medical Evidence) Regshttps://www.legislation.gov.uk/uksi/1976/615/regulation/2
Reg 28(2) UC Regs
https://www.legislation.gov.uk/uksi/2013/376/regulation/28
https://universalcreditinfo.net/issues/assessing-capability-for-work
LCWRA Risk NI Caselaw
Rightsnet summary with link to judgement
https://www.legislation.gov.uk/nisr/2016/216/contents/made
related caselaw https://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=5009
https://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=5003
Enhanced support for irESA claimants with migration notices
https://committees.parliament.uk/oralevidence/15391/pdf
https://www.whatdotheyknow.com/request/home_visits_team_universal_credi
https://data.parliament.uk/DepositedPapers/Files/DEP2024-0673/081_Home_visits_V14.0.pdf
UC (Claims & Payments) Regs 2013, Schedule 6, para 7
https://www.legislation.gov.uk/uksi/2013/380/schedule/6
UC guidance: https://data.parliament.uk/DepositedPapers/Files/DEP2024-0673/054_Deductions_V17.0.pdf
Advice for Decision Making guidance paras D2026-2028
https://assets.publishing.service.gov.uk/media/64a6b13cc531eb000c64ffa6/admd2.pdf
Call for evidence on job centre reforms.
Benefits Newscast March 2025 – Transcript
Michael Chambers: [00:00:04] Hello everyone, and a very warm welcome to this Benefits Training Company Newscast, where we’re going to be discussing items of news and other topics of interest from the world of welfare rights. My name is Michael Chambers, i’m standing in for David this month and joining me, as usual, is Will Hadwen. Hi, Will. And also Pamela Carysforth. Hi, Pamela. Good to have you both with us. Well, there’s quite a bit going on in the papers, isn’t there? In the mainstream news, I think, with benefits. Not all of it very helpful. Bit unsettling for claimants. So, Pamela, I’m going to turn to you first, what’s your first item of news that you’ve got for us?
Pamela Carysforth: [00:00:50] Yeah. So I’ve just picked up on the judgment about third party deductions for rent arrears. So this is a Universal Credit only case, really? But just a little bit of background. You can ask for a managed payment to landlord to pay the normal monthly amounts up to the, up to the eligibility for the housing cost element. But you can also go for a deduction for rent arrears. And the idea of this is it’s meant to be a decision about if this is in the claimant’s best interest, you know, to prevent homelessness, give them a stable family life. Et cetera. Et cetera. And then the landlord can apply and say, can you send me some of their standard allowance to keep the arrears down? Now, up until this point, there had been no real recourse for the claimant to argue if those third party deductions had been taken. So it’s a really interesting case. And basically the judgment was that that process was unlawful and specifically.
Will Hadwen: [00:01:52] Which we covered last time, didn’t we, Pamela? But it’d be interesting to hear about it from a housing association perspective.
Pamela Carysforth: [00:01:58] Absolutely. So It’s really interesting from this point of view that they’re not saying that you can’t do this anymore, but what they are saying is that there is going to have to be a change, and there’s going to be the opportunity for somebody to make their own representations as to is the information that they’re making the decision on complete, is there any other information they could provide? So we don’t exactly know what’s going to happen so far. It is a bit of a watch this space. But I work in a large social housing social housing association. It’s going to be a thing. You know, we might have to have a different process in place. I’m assuming it might be the equivalent of a to do where somebody can go back, but who knows. So the only thing that we know so far is that the claimant and the affected party has to be in the loop and has to be able to at least fight their corner a little bit. So, what happens at the moment – pass, but definitely for social landlords need to be on the radar.
Will Hadwen: [00:02:58] But that’s not going to change the housing association practice of applying for one which they seem to just do as standard?
Pamela Carysforth: [00:03:06] Well, it could potentially though, because one of the aspects in this that isn’t as much in the benefit regulations as part of their partnership agreement is that they should only be going for a third party deduction if they have exhausted all other options. So they might have to put into their policy some standards, as now we’ve tried this, we’ve tried that, we’ve tried the other, here’s the last resort. Because that’s why you can’t go for them if somebody’s working, you know, if you like look back to the old deductions getting taken from Jobseeker’s or ESA. They were only for the out of work benefits. So really, if Universal Credit is an in-work out of work benefit, you can’t get a third party deduction if there’s earnings over the work allowance in there but maybe they might have to start showing that it’s not just that someone’s got arrears, it’s that someone’s got arrears and we haven’t been able to get them to stick to a pattern of payment. So they might have to start justifying that this is the sort of payment that they should be sending through. Yeah.
Michael Chambers: [00:04:05] It makes sense because these managed payments can can be useful can’t they? Just to keep the rent. And certainly, you know, from the housing association perspective as well. But as you say, they they seem to be the first choice rather than, you know, trying anything else sometimes, don’t they? It’s, um. Thank you. Thanks, Pamela.
Pamela Carysforth: [00:04:24] Thanks.
Michael Chambers: [00:04:25] Will, what have you got for your first news?
Will Hadwen: [00:04:28] So I’ve got a test case, a very recent test case, which was handed down on the 29th January. And it is about the transitional element. And when it is eroded and it actually relates to someone who claimed Universal Credit under Natural Migration, not Managed Migration, but it’s equally applicable to Managed Migration situations. And the case is called MJ. “MJ vs Secretary of State for Work and Pensions”. What happened was that the claimant was a carer so they got the carer element to begin with. Then met the conditions for the Limited Capability for Work related activity element to be included. That of course replaced her carer element, but at the same time reduced her transitional element completely because they took the whole of the LCWRA element and removed the whole of her transitional element as a result. So she lost out, she lost out by the equivalent of the carer element and that was found to be discriminatory, comparing her to other claimants who, for example, might already have LCWRA and then become a carer. And the difference was found not to be justified. So in a similar situation, certainly for decisions that need to be made on or after the date of that judgement, the DWP have to instead take the difference, so the difference between the LCWRA element and the Carer element off the transitional element. So that’s a bit of a complicated way of saying you shouldn’t be worse off if you’re a carer who starts to get the LCWRA element. Now it’s a bit more complicated if you’ve got a decision from before that, because you might be affected by something called the Anti-test case rules. And if you are in that situation, then it’s going to depend where you are in the process. But we’ve put some links in the sources document. So um, what I would do is have a look at those first.
Michael Chambers: [00:06:37] Okay. So this is yeah, we’ve got the links that people can if they think they can be affected by this. So on cases going forward the DWP should do this automatically. Should they. The claimant wouldn’t need to do anything…
Will Hadwen: [00:06:52] Yeah. If this decision, if the erosion decision – so that’s the assessment period in which you start to get LCWRA and your transitional element is eroded – if that comes up from now on then they have to make the decision in accordance with the case. But if you had an earlier decision and you didn’t manage to get a mandatory reconsideration done before the test case, then it’s a bit more tricky. I would have a look at the sources, because it may be that the CPAG page covers those situations. If it doesn’t, then you will need second tier advice from either us or CPAG.
Michael Chambers: [00:07:35] Okay. Yeah, we’re happy to give advice on our advice line. Aren’t we on this? Yeah. Brilliant. Thanks, Will. Back to you, Pamela. What’s your second news item?
Pamela Carysforth: [00:07:47] So my second one is erosion of the transitional payment.
Michael Chambers: [00:07:51] Never ending saga.
Pamela Carysforth: [00:07:53] Oh, dear. Yeah. So it’s just a reminder. There’s not necessarily any new case law on this. But erosion should not occur in the first Universal Credit assessment period. Yeah. So just an example to put it in context. I had somebody that was migrated over to Universal Credit. They couldn’t share a room with the husband. Housing Benefit had accepted that in the past. So they went onto Universal Credit and as standard they took a bedroom off and applied under occupation. So when I got through and we checked the award together in the second month, we said, “oh no, wait, they’ve never been able to share a bedroom. This has been the case right from the beginning. Please give the extra bedroom take off under occupancy.” And they did that from month two, which eroded the transitional protection. We went back and said, no, no, no, you can revise this from the start thank you very much. Said fine. Yeah, sure. Here you go. There’s the extra bedroom from month one, but they’d still eroded the transitional protection. So now we are fighting this because it just isn’t something they should do. So it’s Universal Credit Transitional Protection Regulation 55, says you work out in month one how much transitional protection is from month two it can be eroded. So any increase within that first assessment period should not be used to erode. So we’ve done an MR, they’ve stuck to the guns so far. And to be honest, I’ve had a few different cases. Some of the understanding at the journal level when you’re speaking to the DWP isn’t ideal. I’m really hoping that it will get sent to a specialist team and they’ll figure out what’s wrong. But just for anything else like that, especially fixing things like the rent, housing costs, how many kids? And they didn’t verify somebody straight away. Anything that gets added to the first assessment period shouldn’t be used to erode transitional protection.
Michael Chambers: [00:09:51] So that’s a really useful reminder. Yes. Thank you. So it also shows as well that you know that putting things on the journal sometimes, you don’t get a response or it doesn’t get actioned. It’s so you should go for an MR in those cases specifically.
Pamela Carysforth: [00:10:09] Yeah, absolutely. I like the journal because you’ve got an audit trail and then you can tell them, to be honest, sometimes a little technique is kind of, you know, the first time asking in quite plain language, you know, and just saying, please, can you help. It doesn’t have to be a battle. But then if you do get responses that don’t show they’ve understood the actual issue, then it’s kind of like getting a bit more formal as the messages go on. Yeah.
Michael Chambers: [00:10:33] That’s great. Thank you. Back to you, Will, for your second news item.
Will Hadwen: [00:10:39] I’ve got another case and I really, really like this one. I think we all like this one because it’s something that we’ve sort of been waiting for, for a case like this for a while. So this is a case about when you get the LCWRA element, so quite topical again. And when three months starts before you get it. So with some exceptions, you have to wait for a relevant period which is three months from the assessment period in which you first submit medical evidence. And what happened in this case was the person didn’t initially have a fit note. They self-certified, so they declared that they weren’t able to work which the medical evidence regulations say that you can do. And they also kind of referred to the fact that they’re on PIP. And then later on they did get a fit note and that was backdated. So what this case usefully says is, yes, you can self-certify and that is evidence, certainly for the first seven days should be accepted because you don’t need a fit note until later. And then what is reasonable if you can’t provide a fit note for whatever reason, could be you saying, well, I’m self-certifying and also I’m on a disability benefit. And thirdly, that a backdated fit-note can be used to make sure that the relevant period doesn’t stop partway through when it’s just got started. So all of that is really, really helpful stuff, which I know that Pamela and other colleagues have been arguing this for ages, but now we’ve finally got an Upper Tribunal decision that confirms what we felt ought to be the case.
Pamela Carysforth: [00:12:29] Absolutely. And I’m sorry. No, I just think.
Will Hadwen: [00:12:32] Go on, go on.
Pamela Carysforth: [00:12:33] One of my favourite quotes about that is specifically pointing out part of whether it was reasonable, what other evidence was reasonable to provide was they hadn’t been asked specifically. Oh, yeah. Please, can you do this? Yeah. And I’ve had some cases where you kind of think, yeah, I’ve got my own little theory that I will not do on this Newscast, but I’m not sure they’ve actually got permission to change the start date of a relevant period if it was started correctly. But me and Will can argue that in private over the next month or so. But when you do see and it’s kind of like fit, no expiry reminder, no action, no response if they have actually done all the reminders and somebody hasn’t done anything, it makes it think, oh no, it is quite reasonable that they knew they needed to, but in some cases they’re applying the same rule when they haven’t asked them for fit notes,
Will Hadwen: [00:13:18] Which is exactly what happened here. Exactly. Yeah. Yeah, yeah. So just going back to that point, you’re, you’re right to raise that, Pamela, because it still had to be unreasonable for them to provide a fit note. And what made it unreasonable was this person was also a carer and had said, do I need to provide a fit note because I don’t actually have to look for work because I’m the carer of, I think, her daughter, and DWP just didn’t respond to a journal message as we were talking about just before, shock/horror and so their lack of response meant it was reasonable for her not to realise she needed to provide one.
Pamela Carysforth: [00:13:55] Yeah, it didn’t go as far as saying, and anybody who gets PIP doesn’t need to do it already. So it’s still case by case, isn’t it?
Will Hadwen: [00:14:03] Still case by case. And you need all of the things to be in place. You need it to be unreasonable to require someone to provide a fit-note, and you need the other medical evidence to be sufficient of a limited capability.
Michael Chambers: [00:14:16] This is interesting, isn’t it? Because I think most people, when we’re talking about Universal Credit, are sort of okay with fit notes and getting them. But the concept of self-certifying sort of is normally, you know, a statutory sick pay. So just. Yeah, yeah. It’s just how when you say additional medical evidence and in terms of the practical steps to self-certify again, is it back to the journal Will ?
Will Hadwen: [00:14:43] There’s absolutely no reason why the Journal shouldn’t be accepted. I think you might also be seen as self-certifying if you’d had a chat with your work coach because if you think about it, it’s the same as if you’re at work, if you’re actually employed then I think a lot of people are very comfortable with the fact that they don’t need a sick note to begin with if they’re just going to be off sick for 2 or 3 days, just ring up and have a chat. So, yeah, I think it should be the same as in the workplace that you can self-certify by any means that is letting UC know and we know that you can let UC know about lots of other things, either on the journal or by ringing the helpline or at the Job Centre.
Pamela Carysforth: [00:15:28] Yeah. And just with that when you actually, if you did declare it as a change and go through that, one of the statements that you do have to say is that this illness affects my ability to work.
Will Hadwen: [00:15:39] Oh thank you. Yeah.
Pamela Carysforth: [00:15:40] So to me that is. Yeah. And you can only self-certify for I think how is it 5 or 7 days I think yeah. Seven. Yeah.
Will Hadwen: [00:15:48] But I think your point is, is really important Pamela isn’t it. Because if you want proof that you’ve self-certified, you’re actually best off doing it on your account.
Pamela Carysforth: [00:15:57] Yes. Yeah.
Michael Chambers: [00:15:58] For the record.
Will Hadwen: [00:16:00] Going back to what you were saying about the audit trail. Yeah.
Michael Chambers: [00:16:04] Lovely. Right. Well, I think we’ve probably got enough time for another quick news item. Is that. Have we got a quick news item, Pamela? Have you ?
Pamela Carysforth: [00:16:14] Yeah, I think mine’s quite quick. So Northern Ireland decision, but, you know, hopefully should go across the pond. So it’s basically they turned somebody down for the significant risk to get LCWRA in a work capability decision. But this person had got 27 points that led to Limited Capability for Work. And those points were about can’t go out by themselves, coping with change and engaging with people. Don’t directly quote me, but all three of them were very relevant to the sort of things you’d be expected to do at the Job Centre. And I just find this so useful because I make these points when I do appeals, you know. Well, surely if somebody can never speak to people without somebody with them, that would be a risk to their mental health if they were forced to do it, you know. So it’s a handy judgment. It’s the same sort of argument that I think a lot of us will use day to day. You know, you’ve been given points for this. Well, why doesn’t that affect a risk decision as well? And it’s quite a good judgment. There’s like little hints of it as well. And I think putting that together with some of the case law, saying you can’t assume that somebody will have somebody to accompany them, you can’t assume that the work coach is going to make reasonable adjustments. I think it is getting to be like a nice little set of case law on LCWRA risk?
Will Hadwen: [00:17:36] So it’s persuasive. But it’s going to be very persuasive in the context of those other decisions. You’re right. Yeah.
Michael Chambers: [00:17:44] Brilliant. Thank you. And Will have you got a last one?
Will Hadwen: [00:17:48] I have, i have got a quick one because you know I always feel like I don’t mention Managed Migration enough. So I had to bring it up. So despite the fact that we have mentioned it in the context of the first case, and the other thing that I wanted to mention again is enhanced support, and just to say that enhanced support should be happening, to most claimants at the moment who are going through Managed Migration, because most of the people we’ve got left on legacy benefits are people on Income Related ESA. So they are all potentially people who might go through the enhanced support process, which would start at week 12 with the DWP trying to contact them. And ultimately, if that doesn’t happen, if they’re not able to contact them and resolve things, with a home visit. The reason that I’m raising this yet again is because we had a recent case come to us where this appeared not to have happened. And not only that, but when the adviser tried to get an extension, they were told, you can’t have one and nobody’s getting them anymore. So we keep getting this mixed message about extensions. So it really goes back to that issue of the understanding of UC at different levels of DWP. The Migration helpline, if they don’t know about the enhanced support process, then they might say things which just can’t possibly be the case. You know, surely this person should either get an extension or DWP ought to be going round and helping them to make a claim before they miss their deadline, or DWP are going to make an extension on their own initiative, in which case that makes the helpline advice just meaningless. So it’s just another one to watch out for is don’t be too put off if you get told conflicting things. I know it’s not ideal, of course, but stick to your guns. Enhanced support is a thing. Extensions are still a thing, they’re still in the law. They’re still possible.
Michael Chambers: [00:19:46] Yeah. Important. Well, I think Managed Migration will probably be in subsequent Newscasts as well. Ongoing topic. Thank you for that.
Pamela Carysforth: [00:19:57] Oh, and just one last thing. The is a current inquiry about asking for evidence about job centres, how they can make them more accessible, look at what they do, how they support people. It’s open till the 3rd March and if you read, you know, what they’re actually looking for, you can do it as an adviser, or you could direct a claimant to do it to submit their experiences.
Will Hadwen: [00:20:20] Thanks for that, Pamela. Yeah. Good reminder.
Michael Chambers: [00:20:23] Well, thank you both for all the news items and for explaining it so, so clearly. And we’ll provide the sources and we are here for with our advice line as well. The advice email rather for queries for people doing our courses in the last 12 months. We’re here to, to help with any queries. Thanks for joining us and see you again. Thanks both. See you next month. Cheerio. Thank you. Bye.