David, Liam and Will discuss: changes to the Administrative Earnings Threshold; a welcomed Upper Tribunal decision involving backdating in Universal Credit, the rollout of Adult Disability Payment in Scotland and challenging Universal Credit sanction decisions.

David: [00:00:05] Hello. It’s our October Newscast. This time we have with us Liam Casey, who regularly delivers our PIP course on our Open program. And he also works for One Parent Family, Scotland. As usual, Will Hadwen is also with us. Will works for CPAG Scotland, as well as delivering many of our courses here at the Benefits Training Company. So if you’ve seen us before, you’ll know that we’ve brought with us, each of us will have brought with us three things that we think are important and that we should share. So that might be news stories, changes in the law, or simply things that we’ve come across in our work that we’d like to share with you. So, first of all, I’m going to ask you, Liam, to share with us one of yours, so perhaps you can pick the one that you’re most keen to share with us and tell us what that one is.

Liam: [00:01:03] Okay. Well, perhaps one of the kind of bigger recent news stories, I’m imagining you may have picked this one as well. I think Will was tweeting about it today. So more Universal Credit claimants are being required to look for work due to changes in the administrative earnings threshold.

David: [00:01:26] Very good, very important. And I’m glad you’ve got that, and I’ve got it, too. So tell us what that is or tell everyone listening what that is and what it means?

Liam: [00:01:38] Yeah, okay. So the administrative earnings threshold is an amount of earnings from employment that if you earn that amount or more in a month, you’re not expected to look for work in exchange for your Universal Credit. So that amount has been (let me look at my figures), £355 a month for a single claimant and £567 a month for couples. But today that’s gone up. So that’s now gone up to £494 a month for single claimants and £782 a month for couples. So what that means is that those who are earning under the new threshold will find themselves expected to look for work, and if they don’t, they could be sanctioned. But of course, that won’t apply to everybody because some people are not expected to look for work as part of their Universal Credit conditionality, right? So people who have limited capability for work, people who are carers of a disabled person or people who are looking after a child who’s under three and not expected to search for work. So they won’t be affected by this, but a lot of people will and they might be wondering, well, how am I going to increase my hours or how am I going to get paid more in order to get back above this earnings threshold so that I’m not expected to look for work? There’s one more thing to say about it as well, which is that it was announced in the budget, the mini budget last week, that it’s going to go up again. They’re, well they’re intending to put it up again, at least in January 2023. They’re looking to raise that, I think, to £617 a month for single claimants and £988 a month for couples.

David: [00:03:31] Got it. So those figures I find a little bit difficult to digest. Those are the monthly amounts, aren’t they? We’ll put them on our on our website so people can see them.

Liam: [00:03:40] They base them on the national minimum wage and a certain number of hours. But sometimes it’s easier, I think it’s easier to think of them as the actual amount rather than amount of hours, because some people might not be earning the national minimum wage.

David: [00:03:53] True. And I think, yes, when we’re working with people, perhaps it’s important to use the amount because basically that’s, like you said, that’s what people have to earn to no longer have to present as looking for other work, right? So those figures are super important, and people should check them. So just to summarise or to confirm the new figures, which I think are as of this week, right? Certainly end of this month.

Will: [00:04:20] Well, I think it’s important to say that this won’t affect you until your work coach tells you that it does. So the DWP have said, both in Touch Base, which is their sort of newsletter for advisors, and also in a press release today, that it’ll affect you. You’ll get a message at the end of your first full assessment period. After today, you’ll get a message from your work coach explaining the implications for you. And also to say that if you feel it’s unreasonable because of your particular circumstances (maybe you’re a carer but you still have to look for work because the person you care for isn’t yet on a disability benefit, something like that), to say so, because your work coach has quite a lot of discretion to lift the requirements to look for work, to make it a lower number of hours, that is your own personal threshold, corporate conditionality, earning threshold, or even to suspend it completely for temporary reasons. So if you don’t ask, you won’t get. And it’s important to have those negotiations. I think a lot of people don’t realise that they can ask for that.

David: [00:05:25] Okay. So it’s not quite the end of the story, there may be other things going on which are equally or maybe even more important. But just to be clear, as of nowish or coming in over the next month, potentially, the new figures that we should be saying to people, the critical figures become £494 for single people and £782 for couples. Liam, have I got that right? Yeah. Yeah. Good. Yes. Okay. Brilliant

Liam: [00:05:52] One more thing to say is that they’re average figures as well. So if people’s earnings fluctuate, that’s also something to look at as well.

David: [00:06:00] Okay, good point. Lovely. Thanks, Liam. Will, what’s your top item this month?

Will: [00:06:08] So my top item is something a bit more positive, I think. Of course, whether the administrative earnings threshold is positive depends on your point of view. But I wanted to talk about backdating Universal Credit. But it has been very difficult to backdate Universal Credit since it came in, because if you didn’t ask pretty much as soon as you claimed in the first assessment period, (so the first month after you claimed) the DWP said, no, you’re not allowed to do it because your claim doesn’t exist anymore, essentially it’s been decided. So the short solution is that a judgement has decided that’s wrong and you can backdate regardless of when you ask, because what you’re asking for is a revision to the initial decision made on your claim, where the decision maker could have considered backdating and indeed should have considered backdating. But still, the advice is if it affects you to ask for it, of course. Because what hasn’t changed is that you have to have a backdating ground. So the reasons are not just any good reason that you come up with – it has to be, you didn’t claim earlier because of disability or illness or because you weren’t notified that your legacy benefit had ended. So it’s still quite limited. But for those people that it does affect, it could make quite a big difference.

David: [00:07:32] Right. Really important, thanks. So backdating is available. This judgement confirms you don’t have to ask for it at the time, it can be later, it can be after the decision has been made it is still potentially available. And I think this is because it reminds me that before Universal Credit, claim forms used to have a box that you could tick, didn’t they? Would you like your benefit to be backdated, and if so, what are your reasons, if reasons were needed? But Universal Credit doesn’t do that, does it? When you claim Universal Credit, there isn’t a question (as far as I’m aware), there isn’t a question that says, would you like it to be backdated? So the decision seems, I mean it’s important, of course, but also completely obvious anyway.

Will: [00:08:17] Well, that the slightly strange principle behind the decision is that it’s on the decision maker to notice that you have a backdating ground and to decide whether actually you can apply for an earlier period.

David: [00:08:28] Yeah, right.

Will: [00:08:29] But in practice, of course, yes, we do want to see that box on claim forms, so I hope that will be forthcoming and that the DWP don’t challenge the judgement.

David: [00:08:41] But in the meantime, yeah, we should be encouraging people to check for backdating, check for those sorts of potential reasons. In this case it was around disability wasn’t it, which is quite a broad.

Will: [00:08:51] It was, and I suspect that’s going to be the most common. Yeah.

David: [00:08:53] Okay, good, thanks. Liam, can we take another of yours? Partly because I’ve got one that I want to mention, but I’d like to come to you before I do, yeah.

Liam: [00:09:07] Okay. So I guess I want to talk about one that’s an update from Scotland, relatively sort of a big one that people may know about this already, but I’ve got a few little extras as well. So since the 29th of August, Adult Disability Payment is now in place for all new claims to adult age disability benefit in Scotland. So no new claims for PIP in Scotland anymore, and people on PIP and working age DLA will be getting transferred to Adult Disability Payment if they’re resident in Scotland as well, and that process will have begun now and should be happening up until about 2025.

David: [00:09:54] Okay.

Liam: [00:09:55] Yeah, that’s the main kind of thing to know. So we can discuss that and I’ll come on to a few extra bits and bobs if you want?

David: [00:10:00] But let me just say that again for people. So all new claims now, and I’m not sure I completely understood this or realised it, that all new claims will be for Adult Disability Payment rather than for PIP in Scotland. Yeah, right. Okay. Yeah.

Liam: [00:10:18] So if you’re an adviser in Scotland, you might never have to fill out a PIP form ever again.

Will: [00:10:25] But the ADP forms are quite long.

Liam: [00:10:27] Exactly. So whilst you may, or some people may celebrate that, then once you get the ADP form, yeah, it’s quite a long form. It’s longer than the PIP form actually, because it has a lot more questions, which is helpful for claimants, definitely. Really helps them to get out the stuff that they need to get out in the form. But a bigger task perhaps for advisers as well.

David: [00:10:52] Okay.

Liam: [00:10:55] And coming on to that, actually thinking about advisers, the thing that I wanted to share was that they’ve, I think recently put out a new claim form for organisations. So if you work for an organisation in Scotland and you’re assisting somebody to put in a new claim for Adult Disability Payment, this is one option for doing that. So it’s a PDF form that you can download from the Social Security Scotland website and it basically allows you to complete the form remotely. You could do it digitally, type in the answers on your computer or print it out and fill them in. Now, if you’re doing that, an important thing to say is that the claimant needs to still get in touch with Social Security Scotland to lodge their claim because they need to protect the date of the claim. I mean, otherwise it’s going to be once the form arrives that they’re the ADP is likely to be paid from, right? And the other thing to know is that they have got to sign the form as well as the claimant. So once you’ve filled in that form, you’ve still got to get your claimant to sign it. If they don’t sign it and you send it in to Social Security Scotland, they’ll post it to the claimant, as far as I understand, ask them to sign it and then send it back. So it may work. It doesn’t seem to solve all kind of issues that people have working remotely, but it may help. So we’ll share the link for that.

David: [00:12:15] Okay, great. Thank you. And you mentioned existing claimants of PIP, but I’m guessing that the main focus is on new claims at the moment. Is there any timescale?

Will: [00:12:26] They are transferring. They’re transferring people on DLA and PIP and that started.

Liam: [00:12:31] So and they said that it should take them up to about 2025. So if you’re on DLA in Scotland (Adult DLA in Scotland) at the moment, you will be transferred at some point. You’ll be automatically paid Adult Disability Payment, supposedly. And if you’re on PIP, at least, you shouldn’t be reassessed until the end of your PIP claim, when your PIP claim was going to end, or if you have a change of circumstances. But it looks like with DLA (Adult DLA) they will reassess you within a 12 month period after they’ve moved you across. I think that’s what I understand from what they put out. Is that the same as you Will? Is that what you’ve looked at?

Will: [00:13:18] Well, it’s a little bit more complicated, but the detail is you get a sort of transfer amount, which will be the same as what you were on before. And then there’ll be determination where they’ll take into account everything that they know, including what they’ve got from the DWP, about you. So at that point, it is possible that there could be a different decision. But it’s also worth saying that actually, with a few tiny differences, the benefits are very, very similar. So although we hope that it will be assessed in a much fairer manner, there won’t be many face to face assessments at all. On the other hand, the actual disability criteria are very similar.

David: [00:13:59] Yeah. Got it. Okay. Thanks both. I wanted to share a case that came in to our advice service last week. It’s to do with sanctions. We’ve been talking a lot about sanctions. And the administrative earnings threshold is kind of related to sanctions, of course. Sanction decisions have been going up a great deal over the last few months. And we had this case. I’ll put it on the screen. I think it’s a couple of working age. They’re getting universal credit and we’ll call them Mr. and Mrs. C. Mrs C failed to attend a Jobcentre Plus appointment in April of this year, was sanctioned as a result. Mr. C, her partner is unwell and has been in and out of hospital and during this time was awarded PIP from from November last year. So Mrs. got advice and advisers helping her with this. But essentially the sanction decision was terminated or the sanction itself was was terminated. But on the date that she made the notification that she was a carer. Plus seven days, I should say. So basically part way through is when she got advice, she contacted the DWP and said, “Look, I’m a carer, my partner gets PIP, I’ve been sanctioned, please, would you stop the sanction decision?” And I guess she was expecting it to be stopped retrospectively, but it wasn’t.

David: [00:15:46] It was stopped from when she contacted them plus seven days. So I wanted to raise this because this seems to be a really good example of where we should be encouraging people to challenge decisions, which we, of course will. But I wanted to use this as an example of of how we might do that as well or on what sort of grounds legally. So I’m thinking that ordinarily we’d be talking about good reason, wouldn’t we? You know, do you have a good reason for failure to attend an appointment and if so, you’d expect the sanction decision to be to be changed. But in this case she’s acting as a carer as well, so arguably isn’t or wasn’t available for work in the way that otherwise she might have been. So what, what do you both think? Am I right in thinking that sort of both things we would want to explore here and retrospectively the fact that she’s a carer will affect the sanction decision and whether she should have been sanctioned throughout that period.

Will: [00:16:56] Yeah, yeah, absolutely. Well I’d put in a mandatory reconsideration in and I’d say at least three things. So one is her work related requirements were unreasonable on the basis of one assumes the work coach knew about her situation, but we’d need to explore that. Secondly, she did have a good reason. And thirdly, throughout that period, from the date of the PIP claim, she was retrospectively in the No Work Relationship Requirements group and the carer element can be backdated all that way. Although weirdly, that’s a decision that always has to go to decision maker, which I find very odd, but it’s in the regulations. So it follows. I’d want to look into this a bit more, but it follows that essentially, she was in the No Work Related Requirement Group, so there should be no sanction. Yeah. You want to look at the regulations as a bit more detail, but that’s essentially what I would what I would do. What about you, Liam?

Liam: [00:17:54] Yeah. That sounds like the right approach to me as well. I want to add anything to that. I mean. Yeah, I agree. She had a good reason. Yeah. I’d also agree it should have been in the No Work Related Requirements Group. So how that kind of retrospectively affects the sanction? Again, I’d want to look into that a bit more.

Will: [00:18:12] Yeah, let’s look that up. But I think your instinct basically, David, is, is exactly what we’re saying.

David: [00:18:18] Yeah. So we’ll check this and confirm, I guess. But what we’re saying is it’s really important to check your work requirements in the first place. Right. And that, you know, it may not even be a question of good reason, because it may be that there wasn’t a failure in the way that perhaps the DWP might be suggesting there is. OK Did we cover all of yours Will or was there anything else on you all?

Will: [00:18:45] Oh, I had lots of extras because I thought I thought everyone would go for the administrative earnings threshold.

David: [00:18:50] Yeah, I did. You’re right. Well, we’ve got about 2 minutes, I’d say.

Will: [00:18:54] So I had many extras, but one of my other extras was was not a Universal Credit case for once. And it’s a judgement about legacy benefits and it’s about third party deductions. So it’s about part of your benefit being taken and then used to pay your debts to utility companies, for example, or your council tax arrears or your court fines, etc. So this is a deduction that can be quite high even in legacy benefits, in Universal Credit. Of course, we know that they can be a huge part of your Universal Credit and it was found to be unlawful. The guidance on how those deductions are made was found to be unlawful because basically the claimant doesn’t get consulted at all. The company applies in this case, the water company. The water company applied the word arrears, so they started taking money off the lady’s benefit. So now that that’s been found unlawful, it has, I think, lots of implications, not just for legacy benefits, but also for Universal Credit, where essentially something very similar is happening.

David: [00:20:05] Okay. Good and such a common problem that we work with, isn’t it the whole issue of deductions generally? So yeah, potentially very important. Okay. So we’ve come to the end of our 20 minutes or so as well as thanking you both, I’d like to remind everybody that we have our advice email, which you can see in the corner. So if you’ve attended trading with us in the last 12 months, you can email us and one of our team will get back to you by the end of the next working day. And if you haven’t done and you need to attend a course with us in order to extend your advice, then you can do that via our website. The other courses there. It’s a reminder as well. Day for your diary. Tuesday, the 10th of January is our next Benefits Update Webinar, which is a 60-minute live event where we involve, you ask, invite your questions or have a conversation about topical issues as well as talking about developments and changes. Once again, thanks both. Good to see you as ever. Thanks, everybody, for listening. And we hope to be working with you again soon. All the best, bye.