David, Will and Lindsay discuss: UC managed migration tips; a supportive decision on UC overpayment recovery from the ECHR; a new PIP review form; changes to work requirements in UC; a High Court declaration that the DWP discriminated against registered blind and sight impaired people; new areas affected by the UC managed migration from September.

Transcript September 2023

David Stickland: [00:00:04] Hello. We’re back after a short break for the summer. And it’s Will and Lindsay joining me today for our September Newscast. And hope you both have had a bit of a break or you feel like you’ve had a break for the summer.

Will Hadewn: [00:00:23] Oh, yeah. Oh, yeah. Oh, that was an enforced break. Good.

David Stickland: [00:00:30] Well, we’re straight back into it. And as a reminder, for those that maybe haven’t joined us for a while or people that are new. We have half a dozen or so topics, issues, developments that we’ll be discussing. You can either watch it as a video, listen to it as a podcast, or read the transcript. You can also check out the sources and links that we’ll share if you want to find out more. Uh. Lindsay, let me ask you first up, what’s what’s the first thing you’d like to share with us today?

Lindsay Fletcher: [00:01:07] I’ve got the ever popular, UC Managed Migration. Okay. Some of the less common issues though, right ? Do you want me to go straight in or are we going through all the topics?

David Stickland: [00:01:17] Go straight in. Yeah. What are the some of the less common issues? So Managed Migration, less common issues. Okay.

Lindsay Fletcher: [00:01:25] So there’s three things I’ve been thinking about this week. So I think we’re all getting familiar with the fact we need to make sure we help people make a claim before the deadline if they get a Managed Migration letter. Yeah, but I was thinking equally as important, ensuring they make a successful claim.

David Stickland: [00:01:45] Okay.

Lindsay Fletcher: [00:01:46] So that it’s not refused or it’s not closed, as they like to say, because then it’s not a qualifying claim and then they get no transitional protection. So, making sure they have, you know, all their ID in place tenancy documents, bank account, email proof of any, you know, property abroad. People have never had to provide that before if they’re on tax credits and they attend a job centre appointment if they need to and a partner. And then they make a successful claim so they get that transitional protection. Because even if they go on to make another claim afterwards, if one’s refused and they go on to make a new successful claim, even if that’s within the original deadline, if they claimed early, that’s never going to be a qualifying claim. So it’s making sure that initial claim is successful. Okay.

David Stickland: [00:02:45] Okay. Right.

Lindsay Fletcher: [00:02:46] And then there’s are two other things. I was thinking about making sure people check Council Tax Support. Council Tax Benefit is still in payment. Different local authorities are doing different things, aren’t they? Some are ending it and you have to make a brand new claim. Some are just suspending it when the Housing Benefit stops, if they had that. So people checking that. Checking the different passporting entitlement thresholds are different on UC versus Tax Credits. So things like your free school meals and your healthy start vouchers and your NHS prescriptions, you know, we don’t want people to think they’re still entitled to them free and getting fines and things unknowingly. And then the final thing is so this won’t happen yet but people on Housing Benefit when the managed migrated so maybe next April onwards. If they’ve been getting rent direct to the landlord that won’t happen automatically. When they claim Universal Credit it’ll have to be re-requested. So more vulnerable people, once they get their first you know, UC payments, might think, oh, you know, I’ve got a lot more not realising that actually includes money they now need to pay towards their rent. So just making sure people are not getting into rent arrears and are aware that might need to be re requested and re set up.

David Stickland: [00:04:16] Okay. So some great practical tips there for. And when you started talking about the first claim, the second claim and the importance of getting things ready, evidence kind of getting organised, right? Is, is is the sort of key message there that you’re giving. I think getting organised with all of those, potential, you know, requirements for this, that and the other evidence wise. I’m interested in what you said about the second claim. So if the if the first claim is refused or closed, as you say, even if you’re within the deadline, you can’t simply submit a second claim.

Will Hadewn: [00:05:04] Technically, it’s if there’s no entitlement on that first claim. So if it’s closed but they haven’t made a decision, I would dispute that and say, you know, claim closure has no technical meaning. It’s not a legal term. Have you made a decision about entitlement or not? And if you have, that’s appealable. And if you haven’t, then the second claim isn’t prevented from being a qualifying claim. Would you agree with that Lindsay?

Lindsay Fletcher: [00:05:29] Definitely. And this is why I said they like to use the term closed when you know, technically that doesn’t exist. It’s a any it’s a decision. So it’s appealable. But many people don’t realize that and they’ll just go on to just make a new claim and not do anything about the previous claim refusal. And so it’s just making sure that that initial claim is awarded or if refused, appealed and awarded, you know, if you had a good reason for not providing information within the deadline, things like that, just how important it is.

Will Hadewn: [00:06:03] Yeah, and also that you can’t refuse a claim just because someone hasn’t verified something. You’ve got to decide on the basis of the evidence that you have. And so some of these even when they’re saying that there’s no entitlement, some of those decisions might not be lawful if they’re saying that there has actually been a decision.

Lindsay Fletcher: [00:06:21] There’s such a common error and confusion area.

David Stickland: [00:06:23] I think it is, isn’t it? This I mean, this happens a lot in terms of sort of general claims issues around benefits. So often people think, well, I’ll have another go, I’ll put in another claim and start again because that, you know, maybe a different decision maker will look at it and I’ll be successful at this time. But actually in this case, as is, I think often generally the case, we want people to persevere with the first claim, don’t we? And perhaps even consider challenging that decision. Because it could be resurrected and it could be a positive outcome.

Lindsay Fletcher: [00:06:55] Especially for those who would be worse off if they don’t get the transitional protections.

David Stickland: [00:06:59] Oh, yeah, definitely. Yeah. Okay. Well, I’m glad you mentioned that. Thanks, Lindsay. Um, well, what are we going to talk about?

Will Hadewn: [00:07:07] So I’ve got something also connected to Universal Credit, and it’s to do with overpayments and back, I think it was in the March Newscast, I can’t be certain. We talked about the implications of a case called K versus Secretary of State for Work and Pensions, and that was about where somebody might have a legitimate expectation that they were entitled to UC even though it was being overpaid because they kept on checking and saying, “oh, this doesn’t look right, are you sure I’m entitled to this?” And there’s another case, um, which is a European case, which might mean that you can go even further with that sort of argument. And what it’s saying is, even if you haven’t necessarily checked that your entitlement is correct, if you are getting a benefit and you are not aware of the rule, that means your entitlement should have ended, then you might have a legitimate expectation that is then a possession in human rights terms and recovering it could be disproportionate depending on your circumstances. So you’d still come back to things like, did the claimant contribute to the overpayment in any way? Were they living on it for their basic needs? And also, what what’s their circumstance going to be if you start taking it off them? So we’ve got a lot more arguments against the recovery of overpayments than we did before. In addition to that, as I think we mentioned back in March, whenever it was, we’ve got the rewritten Benefit Overpayment Recovery Guide and there’s a lot more factors in there than there used to be. So it’s just to encourage people that although it’s quite a lot of admin, it is worth requesting that overpayments of use should not be recovered in those circumstances where the claimant hasn’t done anything to contribute to it.

David Stickland: [00:09:00] Okay. And for people that don’t know Will, how would they go about doing that?

Will Hadewn: [00:09:05] So you apply not to UC themselves but to use the debt management, DWP, debt management. And it might be some time after the overpayment has occurred before they get in touch with you. But there should be a decision about whether or not they’re going to recover or not. That’s a discretionary decision. They don’t have to. And so you can say if you think it would be essentially unlawful to go ahead with that recovery. And even if you don’t have arguments as strong as that, whether there are other factors that mean you think they should consider not recovering and those are listed in the guide.

David Stickland: [00:09:45] Okay, great. So we should emphasize that this remains discretionary. It’s very much on a case by case basis still, I think. And ultimately, if people are unhappy with the response they get from the DWP, is there anything else they can do beyond that?

Will Hadewn: [00:10:01] Yes, it’s not quite as straightforward as with entitlement decisions, but if you felt that the DWP had exercised their discretion irrationally or it involved discrimination, for example, you could write a pre-action letter and that would ultimately be saying, I’m intending to take the DWP to court judicial review. Now, whether you actually would have to do that in the end, you might not. There are some template letters on the CPAG website and they also go into these arguments in a bit more detail as well. I’ll put all the links in the sources documents.

David Stickland: [00:10:42] Wonderful. Lovely. Thanks. Okay, great. Lindsay, I wonder what your next item for us is. Let us know.

Lindsay Fletcher: [00:10:52] And I’ll stray away from UC and something a little bit lighter than Will’s topic there. PIP are now starting to issue a light touch form for reviews, so this is a new form and just become familiar with it. You might see people being issued with it and it’s for people who have got an ongoing like a ten year plus award and also people who may be on PIP and they are pension age. Okay. We also get a lot of queries about this on the advice emails, don’t we? People thinking that PIP ends when someone reaches State Pension age. But just as a side reminder, if someone’s on PIP or applied for PIP before they reach pension age, which is currently 66, then they keep it. They can do reviews and they keep it, as, you know, indefinitely. It’s only new claims after the pension age where they need to apply for Attendance Allowance.

David Stickland: [00:11:54] Yeah, always, always a good reminder. Yeah.

Lindsay Fletcher: [00:11:56] So then people on PIP already might start seeing these light touch forms if the pension age or people with an ongoing, you know, for very serious illnesses, it’s not likely to change. And it is a very light touch isn’t it Will? It’s literally just confirming your personal details, your GP and just ask has anything changed? So it’s very much simpler process for people less to worry about I think.

David Stickland: [00:12:25] So I think I’ve had a quick look at that form. It asks you if anything’s changed and then to say if it has. Yeah, I think. Is that right? So if it hasn’t changed, you kind of just say that it hasn’t changed.

Lindsay Fletcher: [00:12:42] And as unusual, if things have changed and you’re not on the enhanced rates and you might want to try and get moved up to the enhanced rates, you know, you can say, yes, it’s changed, I’ve got worse. And they should, you know, look at it and consider moving you up. But obviously that comes with the usual, you know, warnings that it could go down.

David Stickland: [00:13:02] Great. Okay. Thanks. And of course, we’ll include a link to the form so people can see it for themselves if they haven’t seen it already. Will, back to you. What’s next?

Will Hadewn: [00:13:17] I’m afraid it’s Universal Credit again. Can’t get away from it. So the other thing that I think is on the horizon very, very soon, is changes to work related requirements in Universal Credit. There have already been some changes in July. These are not changes to the law, but they’re changes to what happens in practice. So if you’ve got a child aged one and you’re the responsible carer, you have to talk to your work coach every three months. So that’s an increase from every six months. If you’ve got a two year old and then you have to speak to your work coach every month. So this is quite a big change and people out there are already noticing it. I think particularly for parents of two year olds who are coming up to their third birthday, there’s a lot of pressure there. As you, you are almost in the regime where you have to look for work. But it’s important to say that if you are the responsible carer of a child under three, you do not have to look for work and you can leave that until the child actually turns three and you should not be sanctioned for doing so.

Will Hadewn: [00:14:29] But you do have to, I suppose, participate in these interviews and be the best word, whether they’re by phone or in person. The other thing that we’re expecting in the autumn, it might be September, I don’t know, because this will require legislation, is an increase in the administrative earnings threshold. That’s the point where if you’re working part time, you don’t have to look for more hours. And it’s currently based on 15 times a minimum wage going to go up to 18. So it would be for an individual from £677 a month to £812 and the couple administrative earnings threshold I think is also going to go up before they ultimately abolish that. So that’s going to affect a lot of people. And there’s already the sense, certainly some from some clients that I’ve spoken to, that the DWP some work coaches are getting geared up for that and putting more pressure on people in work to look for work. Don’t know if you’ve experienced that as well.

Lindsay Fletcher: [00:15:35] Yeah. And it’s worrying isn’t it? Obviously with again managed migration that a lot of people are becoming coming over from Tax Credits where they’ve been used to all about hours and under. UC it’s not about hours, it’s about actual earnings. So it’s very, very different for people.

David Stickland: [00:15:53] Big culture shift.

Will Hadewn: [00:15:54] Yeah. There is the the expected hours part of your claimant commitment and that’s going to change as well. And this doesn’t require legislative change because if you’re already in the all work related requirements group, your expected hours are up to your work coach. But what they’re saying is that instead of the default for people with children who are at school but under 13, instead of them being expected to look for 25 hours, that’s going up to 30. So it’s it’s these things which actually they’re small changes that they don’t need to change any legislation to to do these. But when that comes in, that’s going to be a big shock for people as well. 30 hours is a lot.

David Stickland: [00:16:37] On the face of it. It’s lots of little things. But added up, they are significant, aren’t they? And some of them more significant than others.

Lindsay Fletcher: [00:16:43] Potential sanctions, isn’t it? What? Don’t know about you, but still not seeing many people coming for help with appealing sanctions. There’s still this taboo about people just don’t appeal them and don’t know what.

David Stickland: [00:16:57] We are always reminding people aren’t we and stressing, do challenge them and no time limits and all of that. Will you said about a child for parents with a child aged between 1 and 2. I think you said the the interviews are going to be more frequent.

Will Hadewn: [00:17:11] Yeah.

David Stickland: [00:17:12] And is that the same for one for parents of children aged 2 to 3? Yes, that’s basically the same. So it’s more frequent.

Will Hadewn: [00:17:19] It’s not the same frequency. But in both cases, the frequency has increased.

David Stickland: [00:17:24] Yeah. Yeah. Okay. Yeah. Got it. Thanks. And with the administrative earnings threshold, it’s always good to remind people of what they are currently. I know you said they’re going to be going up potentially or likely to be going up. When did you say they’re going up? When is that expected?

Will Hadewn: [00:17:40] Well, don’t know exactly. They’ve said the autumn. People seem to think that might be September. But because that does require a statutory instrument to change regulation 99 of the regs, if it happens, we’ll get a little bit of advance warning.

David Stickland: [00:17:53] Okay.And those those amounts currently, I think you said, are £677 per month for a single person. Yeah. And I didn’t catch the other figure. Do you have that to hand? It’s always good to remind people.

Will Hadewn: [00:18:07] Couple one Yeah. So the couple one is currently £1083. Okay. And you can either earn that combined or one of you earns it, but it means that for both of you, you don’t have to look for more work or more pay.

David Stickland: [00:18:20] Great. Thanks.

Lindsay Fletcher: [00:18:21] Is there still not a date Will, for when they’re changing that to individual earning threshold?

Will Hadewn: [00:18:26] When they’re abolishing the couple threshold. No. And what I didn’t realise until recently is that it looks like they’re going to increase the couple threshold before they abolish it, which is interesting, but who knows what what it what does seem to be the case just from the budget documents is that they’re not going to abolish the couple threshold at the same time as they bring in the next rise.

David Stickland: [00:18:52] There’s a lot going on there, isn’t it? Small things, like you say. But small things are significant things and it’s a lot for us to keep an eye on. Okay. I think we’ve just got time to briefly introduce the final two items. We’ll include links, of course. Lindsay, briefly wonder what your final item was?

Lindsay Fletcher: [00:19:09] Yeah, mine is very brief David. My final one just a recent court case, what might help some people who were supporting people who were visually impaired. That it’s been found that the DWP were unlawful in not providing fully accessible communication. Okay. And they should start providing more accessible emails, pdf documents, letters in braille. I think a lot of people are skeptical skeptics skeptical whether it will improve. But so yeah, it’s a watch this space that anyone working with visually impaired people, it should start to improve. If it doesn’t keep raising it because that is a very topical issue that they should be welcome feedback of. It’s still a problem.

David Stickland: [00:19:56] Thanks. That’s a that’s a good one. So hopefully some better communication and more accessible, communication for people. Yeah, we’ll put a link to that.

Lindsay Fletcher: [00:20:09] Case in the references. But yeah, it was quite shocking weren’t it Will the repeating offences of keep sending unaccessible communication. Yeah. So hopefully it’s been a wake up.

David Stickland: [00:20:23] Okay And finally from you Will, what was your final item, I wonder?

Will Hadewn: [00:20:26] So my final one was just a reminder that people might have seen that there’s more areas going to be subject to managed migration from September.

Will Hadewn: [00:20:35] And I think probably more again in October. So they’re ramping up. We’ll put the link to the latest list of areas in the sources.

David Stickland: [00:20:45] Of course, you.

Will Hadewn: [00:20:46] Can also expect to see more couples being affected. They started off writing to single claimants of Tax Credits, but we expect to see more couples being affected soon. And also in any of the areas you might see people who are not on Tax Credits affected because they are starting discovery by which they mean they are testing approaches with some of those other claimants, even though the majority of them won’t be affected until next year.

David Stickland: [00:21:16] Okay. And that reminds me of our Managed Migration course, which people can come on and find out more about those things in terms of the rollout. But also I think some of the things that Lindsay mentioned at the beginning, I meant to say that we have a checklist on that course, which is a reminder of of many of the things that we should be checking when we’re working with people who are affected by the managed migration. So perhaps we’ll include that as a link and people can have a look at it. And if they want to come on our course they can. I think we’re done. Thanks both and thanks everybody for listening. Of course, you have access to our advice service. If you’ve attended training with us recently. If you haven’t and you’d like to attend, you can. All of our courses are on our website. Wish you all well. See you next month. Thanks. Bye.

Lindsay Fletcher: [00:22:02] Bye bye.