David, Will and Maria discuss: Practical tips when claiming PIP; Concerns about a new DWP leaflet relating to the UC managed migration; Using the additional needs tab in UC; WCA decisions and mistake/ignorance about a material fact; Data-sharing between DWP and HMRC and the need for claimants to report changes; Moving to UC from legacy benefits when forming a relationship with a UC claimant.

Benefits Newscast – Transcript November 2023

David Stickland: [00:00:05] Hello. Thanks for joining us. Welcome to our monthly chat about benefits. When we like to share important information with you, changes, stuff we’re dealing with in our casework topical issues this month. As you can tell, it’s myself and Will Hadwen and Maria Solomon. Perhaps Maria, you can tell us what’s on your radar. I’ll turn to you first if I can.

Maria Solomon: [00:00:31] Well, I’ve got, I’m quite practical all the time, so I’ve got some practical points again, if that’s okay? Because I’ve noticed I do lots and lots of PIP appeals and I’ve noticed in submissions tribunals that there’s always two activities and two descriptors from those activities that are always missed that may give claimants an additional couple of points, that can always make a big difference to getting the PIP standard rate or enhanced rate or not. So two activities are: The first one is activity four, which is washing and bathing. Most people seem to stop when they get the two points, for aids or prompting. So 4B, 4C. However, if you just look down 4E is three points for difficulties getting in and out of a bath or shower. So if someone’s coming to me and saying they’ve got aids in the shower, my next question to them is, if you had a bath that was not adapted, could you get in and out of that bath? And if the answer is no, then I’m pushing for three points from the tribunal. To get them that extra point within the PIP appeal. Because again, I think once you’ve got points, you think, great, I’ve got them. I think that one point can make a difference. And there’s actually case law around that, that says it’s not about whether you can get in a shower, that you’re not entitled. It’s a bath or a shower in effect. So you can’t get into a bath, but you can get into a shower. You still get your three points.

David Stickland: [00:02:26] Okay, that’s great. Thanks. So let me check with you then. Are you saying that for someone that has a walk-in shower, let’s say, but doesn’t have a bath, this could still apply? Is that right?

Maria Solomon: [00:02:37] Yeah, yeah, it’s a theoretical test. Can you get into a bath, that’s unadapted or not? Okay. And the answer is no, because I’ve got pain. You know, I can’t push myself out. That’s three points potentially, rather than the two points.

Will Hadwen: [00:02:53] Maria is absolutely right.

Maria Solomon: [00:02:55] Yeah. And then the next one is medication. So that’s activity three, managing therapy. I have quite a few clients that sometimes might have heart problems, are taking water tablets, and I always make a point of asking them, do you have compression socks or stockings? Because compression socks and stockings is therapy, not an aid. Right. Because it’s therapy, right? You’re looking at more points then. Oh, okay. So if someone, for example, has got difficulties putting on their compression socks, for example, they’ve got arthritis in their hands again, they’ve got back pain. They can’t bend down to put them on and they struggle. You’re looking then that the person needs assistance, maybe up to 3.5 hours a week with managing therapy, which is two points and not one point. So again, you know that additional points can make a big difference sometimes for claimants. And only last week and I mentioned the compression socks because in the last 12 months it’s come up three times for me in tribunals. Only last week I was reminding the tribunal that it’s therapy. We need to be looking at two points. Don’t stick to that one point and lo and behold, the client gets two points. Because there and again there’s case law on that which again, we’ll put in the links can’t we at the end of the session?

David Stickland: [00:04:25] Great. Thanks Maria I think those are fabulous, practical points. In more ways than one. More points for our clients. Based on those lovely practical points. Brilliant. Thanks ever so much. And like you say, we’ll make sure we include those links because I’m sure people will be interested in how you’ve arrived at your thinking in terms of all of that. Great. Cool. Well, I’ll be back to you in a moment, Maria. But let me turn to Will. Will, what’s on your list? Top of your list this month.

Will Hadwen: [00:04:56] Well, I’ve also got something practical. But it’s practical and topical at the same time because, as you know, I am obsessed with managed migration, and that has not changed. And shortly after the last Newscast, we started getting queries from clients who had received a leaflet, and this is a leaflet being sent out to all Tax Credit claimants, even if they are not going to get a migration letter this year. So anyone who gets Tax Credits, whether by themselves or with income support or with housing benefit, etc and this is a really quite ominous looking leaflet that’s got a lot of red and black on it. And it says Tax Credits are ending, etc, etc. Now it’s making people panic because they think they’ve got to claim UC. And although the text of the leaflet does explain, the worry is that some of them will claim, UC, without waiting for the actual migration notice letter. And in particular, we’re talking about some people who won’t get a letter for months because they also get Housing Benefit, for example. And I know people in several different parts of the country who are already really, really worried about this because we’ve also got parts of the country where managed migration hasn’t even started. And so it’s really just a message out there to advisers that even if this isn’t what you’re supporting the client with, you might be talking to them about something else completely like PIP. But you know that they happen to be on Working Tax Credit. You could just mention if you get a leaflet, it’s just preparing you, it’s not your notice. You don’t have to claim you must wait for your deadline. And of course, we can always do a better off calculation to check if it’s worth claiming early, but otherwise, wait until your letter. That’s the message to get out there.

David Stickland: [00:06:43] Thank you.

Will Hadwen: [00:06:44] Maria wants to chip in.

David Stickland: [00:06:47] Oh, sorry. Maria.

Maria Solomon: [00:06:47] No, that’s all right. Because we brought this up because we had a DWP liaison meeting recently, and we brought this up as an issue, and they’ve not come back to us. But one of the questions that we raised or I raised was if the client called, you know, the UC, the managed migration help line, you know, they’ve got a script of questions to ask. Have they got within that script a question that clarifies whether that person has a leaflet or is or a letter? Manage migration process, you know, so they can then advise. And then if they realize it’s a leaflet, do they have then a question to make the client aware or the claimant aware that they don’t need to claim UC at the minute, they’ve got a choice. They’re not part of the manage migration process.

Will Hadwen: [00:07:32] That would be helpful. But even then, you don’t have to ring that helpline. You can just quite easily, arguably too easily just go online and make a claim for UC. But yeah.

David Stickland: [00:07:43] Thank you. Because that’s exactly what I was thinking. You know, distinguishing between the leaflet and the notice. Because, you know, many of us and certainly on training, I’m often saying to people, you know, where one of your clients says, “oh, I’ve been told to claim Universal Credit”. Then to find out the source of that and whether it’s a notice or whether it’s somebody in the local job centre that suggested it’s a good idea and I guess we need to do the same. So I was I was thinking exactly that. And presumably in terms of the message that we should give here, it is quite easy to tell the difference between the two. You’ve just got to know that there’s these two things out there and to check and be clear.

Will Hadwen: [00:08:23] Yes, they’re very different visually. One is a leaflet with colours on it. One is a letter, type letter. The letter has both the HMRC and the DWP logos on it. It’s headed up Migration Notice, it says what law it’s made under. It’s quite different. Would you agree, Maria?

Maria Solomon: [00:08:44] Would it have a deadline as well?

Will Hadwen: [00:08:45] And it has a deadline. Yeah. Within the first three sentences it has a deadline which the leaflet will not. Yeah.

David Stickland: [00:08:51] Thank you both. That’s exactly what I wanted you to do. Thanks. Great. Thanks. Will. Maria, back to your items. I wonder what’s next.

Maria Solomon: [00:09:03] I’ve got the additional needs tab of Universal Credit. Again, I have another practical one. It might be my client group, but I have a lot of clients that for health reasons or circumstances, life circumstances have a vulnerable, have complex needs, however you want to call it. And while I’m dealing with their case, you know, I feel quite happy that I can manage the process. I can make sure the claims are being made, they’ve been made properly, they’re getting their decisions and the correct decisions, the arrears are paid. But then when I close the case, you know, that client with severe mental health problems, that person with addiction problems are still going to have those problems. I mean hopefully not but realistically a year, two years down the line. And then what again, if something happens but they can’t access services. So because I’m worried about my clients, what I do with them is for Universal Credit, I make sure the additional needs tab is completed. Now, the first thing to say is about the additional needs tab. I’ve never seen it and the claimant does not see it. So I’m going on what the DWP liaison meeting has told me is what the additional needs tab looks like. And they’ve said to me that this in effect four things. The first one is it will say, for example, does the client lack digital skills? There’ll be a note made of that. The second one is do they have access to computer internet? And the third one is English is not their first language? Okay. And the fourth category is other. And that’s where life circumstances and illnesses can be noted. And sometimes they’ve also agreed to put the explicit consent in there if I’m dealing with a specific issue. So it’s easy for someone to immediately see that they can talk to me Universal (credit) and speak to me without the client needing to be there. Now, I do that because if down the line the client fails to do something, then UC should be looking at the additional needs tab to see why that might be the case, that they’ve not responded to a work coach request or filled out UC50 form etc. And they should consider that before they take action on the case as well.

David Stickland: [00:11:41] Okay.

Maria Solomon: [00:11:42] So it gives some protection to the client. And the other thing is, as far as I’m aware, again, the additional needs tab will remain the same unless the UC claim is closed or a request is made to change the actual additional needs tab.

David Stickland: [00:12:02] Get it right. So you’re basically kind of trying to future proof the protection that may be available for that person? Which seems like a great idea, particularly at times when fewer and fewer people get services in a way that perhaps people did before. And I just want to run over those four things that you mentioned, because lots of people might be thinking, well, I wonder how I should go about doing this. And you mentioned the four things; digital exclusion, basically, or digital skills; computer access; English as a first language and then other. So all of those four things and other, we could include this sort of more general, thinking around vulnerability.

Maria Solomon: [00:12:46] Yes. That’s right. And it’s not just health, it’s life circumstances. And that’s the important thing with Universal Credit.

David Stickland: [00:12:53] Yeah. Because it may be very difficult to identify exactly what the cause might be. And just to run over again in terms of how you go about doing this, for those people that aren’t sure practically, how do people do it on behalf of a client?

Maria Solomon: [00:13:05] Well, I tend to ring up Universal Credit with the client, with me as well, so they’re aware of what’s happening because like I say, they don’t get to see that additional needs tab. So at least they know they’re aware of what’s going on. And other times I might just put a note on the UC Journal, but I feel less confident with that because, you know. Faith will say that they would follow it up. But, you know, when you’re actually on the phone with someone, you can actually hear them typing it out and confirming you know, what it is. And another route I’ve done is via the escalation team for vulnerable clients.

David Stickland: [00:13:41] Great. Wonderful Maria. Thank you. So number two, Will, we’re definitely have time for that one. So I wonder what is your next one?

Will Hadwen: [00:13:54] Well, my next one is another practical issue. It’s just something that I’m seeing a lot. So it seems as if in advance of DWP changing the Work Capability Assessment, which they may do and we don’t know exactly how they’re going to change it. And the consultation is still open by the way, until the end of October. So not very long. But it seems that they are making harsher decisions. Now I don’t know if this is just me, but that’s the impression that I’ve got of getting more fit for work decisions. And more decisions where people get Limited Capability for Work when they should have Limited Capability for Work Related Activity. Okay. So, I’m getting a lot of queries about this. And one of those queries is can I have another Work Capability Assessment because this one wasn’t good enough? And the problem is if you are found fit for work, the rules say you can’t have a new Work Capability Assessment unless you have got worse. You’ve deteriorated, you’ve got a new condition, or there was a material fact that the DWP didn’t know about or made a mistake about. So for example, there was a condition that you had that they didn’t know about or there was treatment you were having didn’t know about. But material fact is quite a strong bar. And it’s got to be something that’s relevant to you getting Limited Capability for Work. So really you do need to challenge these decisions. And you need to make sure that you challenge them within a month or within 13 months with reasons and not think, oh, I’ll just have another bite at the cherry. If you’ve been found fit for work quite often, there is no other bite of the cherry.

David Stickland: [00:15:33] And with that in mind, and in terms of timescales, we/you mentioned late challenges. Or if you’re not within the first month, it can still be done beyond the first month. So we’re not necessarily just thinking about that timescale.

Will Hadwen: [00:15:47] And I think again that’s something that, because the DWP don’t mention it in their decision letters, clients don’t realise and some advisers even don’t realise you do have 13 months if you’ve got reasons for lateness. And those reasons can include I couldn’t get support.

David Stickland: [00:16:05] Thank you, and beyond that, in terms of having another assessment done, you mentioned the material fact and that it’s a relatively high bar to clear. I guess it’s being able to identify something specific, right?

Will Hadwen: [00:16:22] I mean. Maybe. You might be able to identify something specific at a particularly bad assessor’s report, and you could see that the DWP had missed something that was in your other evidence. Maybe. But I’ve got to say that most of the time, if I am in a situation where I need to get a new assessment, I’m trying to get the client to think of some way in which they’ve got worse and get a doctor to say, this person has got worse.

David Stickland: [00:16:45] Great, thanks. So let me just try and summarize for those people that might be wondering exactly what to do in this situation. If possible, challenge the decision, preferably within a month. If not, have a go at doing it late. Many are successful. At the same time if it’s more than a month, certainly it’s worth considering whether there’s been a deterioration. They’ll need to be some kind of evidence for that, that would allow for another assessment to be done. But possibly also think about anything that may have been missed or if there was a mistake, like you say, around a material fact. There is four things basically there, isn’t there?

Will Hadwen: [00:17:19] I would personally say don’t go for a new assessment unless you definitely can’t challenge the decision, because a new assessment may find your client fit for work, and that will replace any decision you get from an MR, mandatory reconsideration, or an appeal. So just challenge it if you can. The new assessment is kind of almost a last resort, I would say.

David Stickland: [00:17:42] So if you’re within 13 months, perhaps prioritize the late request.

Will Hadwen: [00:17:48] Yeah, of course in some situations you might have an actual very, very clear deterioration and you want to go for Limited Capability for Work Related Activity. And then in those circumstances, by all means go for another assessment.

David Stickland: [00:17:58] Like you say, it’s always case specific isn’t it? Great. Thank you very, very super briefly I think both perhaps you can just let us know the third one. We probably won’t have very long to discuss this, but Maria, what’s third on your list?

Maria Solomon: [00:18:14] There was a case actually on Rightnet and bringing this up because it was just, I was infuriated because the client in this case, it was about the backdated payment of the payment of the disabled child element of Tax Credits starting earlier. And what it was about, it was a data sharing exercise between HMRC and DLA, and it was realised that the client had a child who was in receipt of DLA. So from 2016 that extra element was put onto the TC award. But the client said, “but I’ve had DLA for this child since 2010, so can’t you award it from 2010?” And the answer was no, they couldn’t because they failed to notify HMRC of that change of circumstance. And this highlighted the case that although there is data sharing between the agencies that the claimant can’t rely on that in effect to get an earlier date and why infuriated me was like only a few months back we had the audit. The auditor, I think the Auditor General was saying that 3.3 billion is under claimed in benefits, and the DWP need a better system to identify or detect underpayments. And here we have this data sharing where the client can’t even rely on it.

David Stickland: [00:19:34] Here’s a really obvious one that could be used. It is infuriating. Isn’t it?

Maria Solomon: [00:19:39] And it was more of a rant about that one. Just like, yeah, we have 3.3 billion under claimed, but God forbid the client can actually rely on data sharing.

David Stickland: [00:19:48] I mean, I hear you and I’m sure many will agree. Practically for people I suppose it’s also an opportunity for us to reiterate the importance around the links between these benefits. So if you are successful in claiming DLA, make sure that you get the higher additions if you qualify for them. Exactly, yes.

Will Hadwen: [00:20:05] And just to add, if you are in Scotland and you get Child Disability Payment and then Social Security Scotland and DWP don’t talk to each other that much, so please let DWP or HMRC know it’s the same deal. Just tell everybody.

David Stickland: [00:20:21] And we’ll put it on our website. Will we don’t have very long for it but what’s the what’s the final item that you brought.

Will Hadwen: [00:20:27] So the final item that I brought was it was about a reminder, really against a practical reminder that when people end up on UC because they cohabit with a partner on UC, they don’t get the run on of their legacy benefits, and you’ve no idea what debts your partner may have, including debts to the DWP. So you might see some deductions you’re not expecting and think it’s just something that people are really, surprised about that it happens as soon as you cohabit. It’s not dependent on you making a claim. Obviously, you’ve got to declare it to the DWP. Tax Credits, if you’ve got them finish, you’re treated as claiming UC. And yeah, you don’t get, quite such good protection when you move over as other claimants.

David Stickland: [00:21:17] Thanks, Will. Thanks, Maria. We’ll of course put the links on our website, so please check those out. If you’d like to find out more, please use our advice service if there’s anything you’re not sure about, particularly to do with difficult cases .Please look at our website for other training courses. Of course. Thanks both of you. Once again, wish you all well. Cheers.

Maria Solomon: [00:21:40] Bye bye. Bye bye.