UC or not UC? That is the question

Fiona Seymour considers the impact on a carer’s Income Support claim when the disabled person they care for loses their disability benefit.

It is still possible for some clients to continue receiving legacy benefits such as Income Support (IS) if they meet the conditions of entitlement, e.g. as a carer — this normally requires that the client provides care for a disabled person who receives a specified disability benefit, e.g. DLA/PIP/AA (for the purposes of this article, we will refer to PIP, but the arguments apply equally to any of the other specified benefits¹). This article considers what happens to a carer’s IS if the disabled person’s PIP ends, but they successfully challenge that decision and PIP is later re-instated. Can the carer retain entitlement to IS or do they have to claim Universal Credit (UC) instead?

NOTE: This article was updated on 28 March 2022 to reflect new case law; on 9 November 2022 to include new DWP guidance, and again on 4 October 2023 due to subsequent caselaw.

Once the disabled person’s PIP ends, then their carer’s entitlement to IS as a carer will end, but there is an 8 week run-on period which applies². If the carer also receives Carers Allowance (CA), then payment of this ends straight away. However, once the disabled person’s PIP is reinstated (whether that is by way of revision, supersession or appeal), then as long as the carer re-claims CA within 3 months of the PIP reinstatement, then the CA claim is treated as having been made on the date that PIP originally ended, which means full arrears of CA are payable all the way back³.

Prior to the introduction of UC, a similar rule also allowed the carer to make a new claim for IS within 3 months of a PIP reinstatement decision, following which IS could be fully backdated as well⁴. However, it is now no longer possible for new claims for IS to be made, so this provision appears to be ‘redundant’ because it only allows a new claim for IS to be treated as having been made earlier and, of course, a new claim for IS can no longer be made.

The carer’s only option if they want to claim means-tested support would be to submit a claim for UC. There is no provision to backdate UC to the date that PIP originally ended, only a very specific provision to backdate for a maximum of one month, and even then only if certain criteria are satisfied⁵. So if a carer only claims UC once the disabled person’s PIP is reinstated, they will almost certainly have lost out on income for the intervening period. They would also have to deal with the other effects of claiming UC, e.g. an end to any other legacy benefits they receive; a move to monthly payments etc. They could of course claim UC straight away as soon as the IS ends — for some clients (e.g. those whose UC will not be less than IS and who can cope with the change) that may be a sensible option. But a move to UC is not always an attractive option for everyone.

Is there another way to stay on Income Support?

However, it is important to remember that, unlike CA, entitlement to IS does not end immediately once the disabled person’s PIP ends — it carries on for a further 8 week run-on period. So if the disabled person’s PIP is reinstated within 8 weeks, then the carer’s IS entitlement has never ended and payment can just carry on. All that has happened is that the reason for entitlement to IS has changed. Similarly, it may be important to establish whether the client has any other alternative ground for entitlement to IS before the end of the 8 week run-on (e.g. as the lone parent of a child under 5, as a person entitled to SSP, or on grounds of pregnancy etc.) — if they do, then IS does not end, it can just ‘switch’ to being paid on that alternative ground⁶.

One alternative ground for entitlement to IS applies if the client is “looking after a member of his family who is temporarily ill”⁷. Early case law suggested that people could not be classed as ‘temporarily’ ill if they had a “long term problem which would require treatment over an extended period of time”⁸, but a later decision held that even though a condition could be long term, that did not necessarily mean that an illness deriving from that condition could not be temporary⁹(in that case, the disabled person required dialysis and had periods where he was relatively ‘well’ and periods where he required care). If this criteria can be satisfied, then the carer has an alternative ground for entitlement to IS and their award should not end just because the disabled person’s PIP has ended.

Alternately, if the disabled person’s PIP has been completely withdrawn, they could just re-apply for PIP again straight away — the carer may then have an alternative ground for entitlement to IS as a person who is regularly and substantially engaged in caring for a person who has claimed PIP — this status last for up to 26 weeks or whenever the claim is decided, whichever is earliest¹⁰. But care needs to be taken if the new PIP claim is also refused, as that would then mean that even if the ongoing appeal against the first PIP refusal succeeds, it will only reinstate PIP until the date of the second refusal. So there would need to be another challenge to the second PIP decision, and both the disabled person and the carer would end up back in exactly the same position all over again.

But if there is no alternative ground for entitlement to IS, and it has taken more than 8 weeks for the PIP to be reinstated, is there any way the carer can re-qualify for IS, instead of having to claim UC?

Mandatory reconsideration?

Any decision can be challenged by revision/MR (without having to give specific reasons), as long as the request for the revision is submitted within one month of the date of the decision which is being disputed (although the one month time limit can be extended by a further 12 months if there are special reasons for the lateness¹¹). So it may be possible for the carer to request an MR of the original decision which ended IS, as long as that decision was not made more than 13 months ago. No specific reasons need to be given if the request is made within these time limits, so normally the carer could just argue that as PIP has been reinstated all the way back, then the original decision to end IS was wrong.

However, there is a specific provision which prohibits any revision “in respect of a relevant change of circumstances which occurred since the decision had effect”¹². The carer may have an argument that the change of circumstance has not occurred ‘since’ the IS decision had effect, because the PIP has been reinstated all the way back to the effective date of the IS refusal. In effect, the reinstatement of PIP is not a ‘change’ of any kind — it has merely rectified the original (incorrect) removal of PIP and put the ‘correct’ position back to what it always should have been. It appears that there have been successful First Tier Tribunal decisions on this point¹³. NOTE: Since this article was written, there has now been an Upper Tribunal decision which confirms this argument — see MW v SSWP (IS) [2022] UKUT 59(AAC).

If more than 13 months have passed between the decision to end IS and the decision to reinstate PIP, then a ‘normal’ MR cannot be carried out, as the overall time limit will have been exceeded. The carer would have to consider whether any other type of revision (which does not have a time limit) would be appropriate.

Official error revision?

It may be possible to ask for an ‘any-time’ revision of the IS decision (which ended entitlement when PIP ended), if it can be shown that that decision contained an ‘official error’¹⁴. However, as entitlement to PIP had in fact ended (and so had the 8 week IS run on period), then the decision to terminate IS would appear to have been correct at the time it was made. It might be possible to argue that the decision to stop IS did contain an official error as the PIP award was subsequently reinstated on a later MR/appeal. This is not dis-similar to the argument above (i.e. that the reinstatement of PIP is not a change of circumstances), but an ‘official error’ argument may be even more tricky to run, as technically the ‘error’ occurred on the refusal of PIP and not on the refusal of IS itself. Even if there is a sufficient link between the two, it still has to be shown that the PIP refusal was an ‘official error’ and it is arguable whether this is the case. All that happened was that the disabled person exercised their right to challenge a decision they did not agree with, and was successful in doing so. The carer would have to argue that this was sufficient to show that the original decision to refuse IS was an ‘official error’, e.g. that the decision which ended IS was erroneous as it was based on the ending of PIP which was also erroneous, as evidenced by the fact that it was later found to be wrong.

NOTE: Since this article was written, the DWP have issued guidance which suggests that they do not accept there would be grounds for an official error revision in these circumstances (see DMG Memo 13/22). However, that guidance may no longer be accurate in cases where the disability benefit was reinstated by a Tribunal, following later caselaw in UA-2022–000727-CA.

Award of qualifying benefit revision/supersession?

An original decision awarding benefit (e.g. IS) can be revised or superseded at any time if an award of another relevant benefit (e.g. PIP) is made.

For a revision, this applies if the relevant benefit is awarded from a date which includes the date on which the original decision was made¹⁵. For a supersession, this applies if the relevant benefit is awarded after the date on which the original decision was made¹⁶. However, these provisions only allow awarding decisions of benefit to be revised. They do not allow refusal decisions to be revised. Under HB rules, there is a separate and specific provision which does allow refusal decisions to be revised if a relevant benefit is subsequently awarded¹⁷, but there is no equivalent of this for other benefits, such as IS.

Ignorance of material fact revision/supersession?

It is possible to request a revision or a supersession of a decision which was made “in ignorance of, or was based upon a mistake as to, some material fact…”¹⁸.

It might be possible to argue that the original decision to refuse IS was based upon such ignorance/mistake, as evidenced by the fact that the decision to end entitlement to PIP was later found to be wrong. However, this ground can only be used for a revision if the original decision was “more advantageous to the claimant than it would have otherwise have been, but for that ignorance or mistake”. This would not be the case where the original decision (which may have been ignorant/mistaken as to a fact) refused IS, as that decision was less advantageous as a result.

A supersession on these grounds (which can only be done if the time limit for a ‘normal’ MR has expired) does not contain such a requirement but even if the argument succeeded, the supersession only takes effect from the date that the supersession is requested¹⁹, so no arrears of IS would be payable for any period prior to the date of that request.

Change of circumstances supersession?

The more obvious ground for challenging the IS decision would be to argue that there has been a change of circumstances since that decision was made (i.e. the reinstatement of PIP)²⁰.

However, similar to the rule preventing revisions (above) there is provision which states that once a decision on a claim is made, that claim for benefit no longer exists and “the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at the time”²¹. But all that this provision does is prevent a supersession if the later change of circumstances was not obtaining at the date of the refusal of benefit. Similar to the argument for revision (above), the carer may have an argument that the change of circumstance was ‘obtaining’ at the time of the original decision, as PIP has been reinstated all the way back to the effective date of the IS refusal, i.e. it is not an event which happened later, but which merely rectified the original (incorrect) removal of PIP and put the ‘correct’ position back to what it always should have been. The language used here is not clear, so it is possible that the IS refusal could be superseded on the grounds that a change of circumstances has occurred (i.e. full reinstatement of PIP all the way back to the date that IS was ended).

However, even if this was accepted, there is then the next problem of the date from which a supersession takes effect. For changes of circumstances, a superseding decision only takes effect from the date the change occured²². The carer would have to argue that the ‘change’ occurred from the effective date of the reinstatement of PIP (i.e. all the way back). The DWP may argue that the ‘change’ only occurred on the date that the decision to reinstate PIP was made, so they may only supersede and reinstate IS from the date that the PIP decision was actually made (although if they agree to supersede, they must have accepted that the circumstances were ‘obtaining’ at the time of the original decision).

The above all assumes that the carer notifies DWP of the ‘change’ within one month of it occurring, as a supersession only takes effect from the date of the change (above) if the notification of it was made within one month (or 13 months if there are reasons for lateness²³), so this again raises the issue of when the ‘change’ occurred. As the ‘change’ was the reinstatement of PIP, does the carer have to notify DWP within one month of the date that the decision to reinstate PIP was made? Or within one month of the effective date that it was reinstated from? If the latter, that would clearly be troublesome, although there would be grounds to argue that there are reasons for lateness as the client could not notify reinstatement of PIP before the decision which actually did that was made. But if it’s been more than 13 months, then that could raise a further problem as to whether notification of the change of circumstances was made in time.

Weighing it all up

For the above reasons, it does seem as though such cases will present challenges for the carer who is seeking reinstatement of their IS award, as well as their representatives and indeed Tribunals. However, we have seen cases succeed at First tier Tribunal, although often it is unclear on what grounds those cases have been allowed. Tribunals often have much sympathy for clients in this situation and so may try and interpret the rules in a way which is favourable, especially as the alternative (a claim for UC) could mean the client has lost out on what could be a substantial amount of arrears.

It may be more problematic to argue that the IS decision could be superseded (although again we have seen some cases succeed with this argument at First Tier Tribunals). Perhaps success is more likely if a ‘normal’ MR is requested (within one month, or 13 months if there are reasons for lateness) and arguing that there has not been a change of circumstances since the original decision was made. (NOTE: see new case law referred to above). Failing this (or if it has been more than 13 months since the IS refusal decision), an ‘official error’ revision could be requested instead. Note that the DWP do not have to consider any issue that is “not raised by the application” and a Tribunal “need not consider any issue that is not raised by the appeal”²⁴, so it will be important for the carer to highlight the specific grounds on which the decision is being challenged. However, the DWP do have power to treat a request for a revision as a request for a supersession (and vice versa)²⁵ and case law has held that a Tribunal also has similar powers, if there are grounds to do so²⁶.

For all of these arguments, however, remember that there was previously a specific provision to fully backdate IS, but it specifically required that a new claim for IS be made within 3 months of the PIP reinstatement decision. This suggests that such decisions cannot be revised/superseded on any other grounds because, if that were the case, then those IS backdating provisions would have been superfluous.

As it is not at all certain that any of the above arguments would succeed, the carer also needs to consider whether they wish to submit a claim for UC, as that is the only means-tested benefit they could claim if IS is not reinstated. There is no reason why they cannot claim UC and pursue an IS challenge at the same time, although if the IS is reinstated, it would then only be paid up to the date of any UC claim and the carer would not be able to revert back onto legacy benefits after that date. But at least they would still receive IS arrears for the intervening period. Note, however, that a Court of Appeal case²⁷has held that where a client claims UC due to the termination of a legacy benefit which is later found to be wrong, then it is discriminatory not to provide such people with a remedy to any loss of benefit they suffer (e.g. by way of transitional protection or possibly a return to legacy benefits).

Alternatively, the carer may prefer to not claim UC, if they want to regain IS on an ongoing basis. This may be a risky strategy, as there is no guarantee of success with the argument, and the carer could potentially be losing income while waiting for the outcome of their challenge to the IS decision. But it may be a risk they are willing to take if it means they can continue to stay on IS instead of having to claim UC.

Fiona Seymour works in the Expert Advice Team at Citizens Advice

The information in this article is correct as of the date of publication.

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Endnotes

1. Sch 1B para 4 IS (General) Regs 1987- the specified disability benefits are: AA; AFIP; the middle or highest rate care component of DLA and either rate of the daily living component of PIP
2. Sch 1B para 5 IS (Gen) Regs 1987
3. Reg 6(33) SS (Claims & Payments) Regs 1987
4. Reg 6(19) SS (C&P) Regs 1997
5. Reg 26 UC (Claims & Payments) Regs 2013
6. R(IS)10/05
7. Schedule 1B para 3(b) IS (Gen) Regs 1987
8. CIS/866/2004
9. CIS/4312/2007
10. Sch 1B para 4(a)(iii) IS (Gen) Regs 1987
11. Reg 3(1)(b) & Reg 4 SSCS (Decisions & Appeals) Regs 1999 — see also R(CJ) & SG v SSWP (ESA) [2017] UKUT 324 (AAC) which confirms that where DWP do not accept reasons for lateness (within 13 months) there is still a right of appeal.
12. Reg 3(9)(a) SSCS (D&A) Regs 1999
13. See rightsnet discussion thread ‘UC or IS revision?’
14. Reg 3(5)(a) SSCS (D&A) Regs 1999
15. Reg 3(7) SSCS (D&A) Regs 1999
16. Reg 6(2)(e) SSCS (D&A) Regs 1999
17. Reg 4(7C) HBCTB (Decisions & Appeals) Regs 2001
18. Reg 3(5)(b) and Reg 6(2)(b) SSCS (D&A) Regs 1999
19. Section 10(5) Social Security Act 1998
20. Reg 6(2)(a) SSCS (D&A) Regs 1999
21. Section 8(2) Social Security Act 1998
22. Reg 7(2) SSCS (D&A) Regs 1999
23. Reg 8 SSCS (D&A) Regs 1999
24. Section 9(2) & 10(2) and 12(8)(a) Social Security Act 1998
25. Reg 3(10) and 6(5) SSCS (D&A) Regs 1999
26. R(IB)2/04
27. R (TD & Ors) v SSWP [2020] EWCA Civ 618