Universal Credit Decisions
This article looks at what constitutes a decision in Universal Credit
This article concerns Universal Credit (UC) decisions. The decision is the mechanism that gives entitlement to benefit. It is important to identify the UC decision, and the date on which it is made, in order to know what options there are for getting it changed.
It is not always clear whether there has been a decision. This article will look at some of the issues around decisions in UC.
Once a decision has been made, it can be changed through certain routes. This article should be read together with related articles on the mechanisms through which decisions can be changed through revision, through supersession, or through termination following a suspension. A revision is a change to the original decision, and a supersession is a new decision which replaces the original decision from a later date.
A decision must be made on a claim
Where a valid claim is made, the DWP must make a decision on that claim. There is no duty to determine claims for benefit explicitly enshrined in social security law. However, case law has established that this duty is implied into it (R(H) 3/05).
There is an exception when there is a pending test case. A test case is another case going through the appeals system which will decide a legal principle affecting how your client’s claim should be decided. Where there is a pending test case, the DWP can delay making a decision on a claim.¹
Claims for benefits must be considered within a ‘reasonable time’. What is considered a reasonable time will vary in each case depending on the circumstances and the impact of the delay.²
If there is insufficient information, the Department for Work and Pensions (DWP) can still make a decision. If necessary this will involve refusing benefit based on making an ‘adverse inference’ from the lack of information.
The DWP may say that a client’s UC claim has been ‘closed’. This may happen if the client doesn’t provide sufficient information, or attend an interview. However, ‘claim closure’ isn’t a legal concept. What has actually happened is that the DWP has made a decision to refuse benefit, based on an adverse inference due to the lack of information. This has been confirmed in case law (see PP v SSWP (UC) [2020] UKUT 0109 (AAC) paragraph 43). As this is a refusal decision, it can be revised and carries appeal rights. Providing the required information would allow the decision to be revised on any grounds, as long as this is within the time limit — see the article on revisions for more on grounds for revisions and time limits.
UC monthly assessment periods
The framework for making and changing decisions is The Social Security Act 1998 (“the 1998 Act”). This applies to all social security benefits.
UC is built around monthly assessment periods. This is something unique to UC that doesn’t exist in relation to other social security benefits. UC can generally only be paid in respect of a complete assessment period.³ This can make UC difficult to fit into the legislative framework for decision-making set out in the 1998 Act.
When a client claims UC, the DWP needs to make a decision as to whether the client meets the basic conditions of entitlement. The DWP then calculates, at the end of the first and each subsequent assessment period, how much, if any, UC entitlement there is, depending on their income and capital. The client will therefore receive a statement each month, showing their award for that assessment period.
In some assessment periods, there will be a decision to supersede the award because circumstances have changed, changing the amount of UC the client is entitled to. This would happen if there’s been a change to the UC elements that are included (for example, if the client moves into rented accommodation so becomes entitled to the housing costs element), or a change to the amount of unearned income or capital. In these assessment periods, the monthly statement will be a new decision, superseding the previous decision.
In other assessment periods, the monthly statement will show that there is no change to the award from the previous month. There are also situations where the award can change, but this is done without a new decision being made. This happens when the only change is that the amount of employed earnings as reported through Real Time Information (RTI) changes, or where there is a change in the benefit rates due to annual uprating.⁴
If awards can be altered without a new decision in these situations, it would suggest that a monthly statement where there’s no changes at all wouldn’t be a decision either.
However, the monthly statements are presented as decisions. It may therefore be possible to argue that each monthly statement is actually a new decision. This could be useful if the time limit has already passed to challenge an earlier decision. However, it also raises the prospect that it might be necessary to protectively challenge each monthly statement that has been received since an initial decision was made.
A claim ceases to exist when a decision is made
A decision is final, which means that once it has been made, it can only be changed through specific mechanisms if there are grounds to do so: revision, supersession, suspension and termination, being corrected, or being changed or replaced on appeal.⁵
Once a decision has been made by the DWP on a claim for benefit, that claim ceases to exist. The claim itself is only effective until it is decided by the DWP. This has the consequence that a later change of circumstances cannot give rise to entitlement under the original claim. If a client is refused benefit and then becomes entitled at a later date due to a change of circumstance, a new claim would be required instead.⁶
Another consequence of this is that if there are separate claims leading to multiple decisions, each of these decisions may need to be revised separately. For example, if a client has made repeated claims for UC and has failed the habitual residence test on each of the claims, they will need to challenge the later refusals as well as the earlier one. If the first decision is changed at appeal, the DWP can revise the later decisions as well, but may not do so.⁷ If they don’t this could cause a gap in entitlement for the client. The client should request a Mandatory Reconsideration (MR) and if necessary appeal against all of the decisions. The client can then ask for the Tribunal to hear the appeals together.
Changes before the date of the decision
A benefit decision should take into account any circumstances right up to the date that the decision is made. This has been confirmed in case law in SSWP v KK (JSA) 2019 UKUT 313 (AAC). This means that UC can be awarded if the client starts to meet the entitlement conditions after the date of the claim, as long as they do so before the date the decision is made. Note that a decision that the client doesn’t meet the basic conditions of entitlement for UC is often made on the day of the claim, so there will be a lot of situations when this won’t be of use.
In other social security benefits, if the client started or stopped meeting the entitlement conditions between the date of the claim and the date of the decision, benefit could be awarded for a fixed period. This period might begin later than the date of the claim, and/or end before the date of the decision. However, UC in contrast can only be awarded for a full assessment period or not at all.⁸ This means that if a client only starts to meet the conditions of entitlement between the date of the claim and the date of the decision, they will still get paid UC for the whole assessment period. But if the client only meets the conditions of entitlement for a fixed period that has already ended before the end of the first assessment period, no UC can be awarded at all.
Sometimes this means that clients can get a whole month’s UC if they only start meeting the conditions of entitlement between the date of the claim and the date the decision is made. However, there will be other situations when this means that the client misses out on UC entitlement altogether, as it can’t just be awarded for a fixed period that ends in the middle of the first assessment period.
If a refusal decision has been made and the DWP then becomes aware that the circumstances had already changed before the date of the decision, that decision can be changed. The client must have notified the DWP of the change within the time limit. The Advice for Decision Making (ADM) guidance at Chapter A4 suggests that this would be done through a supersession.⁹ For example, if the client is refused UC because they have capital over the limit, and then tells the DWP (in time) that their capital reduced below the limit before the date the initial decision was made, that decision can be changed and UC can be awarded.
Summary
This article has explored what is meant by a decision in UC. Identifying the decision will determine what rights a client has to have that decision changed through revision or supersession.
Josh Gilbert works as a Welfare Benefit expert in the Expert Advice team at Citizens Advice.
The information in this article is correct as of the date of publication.
Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.
References
[1] Section 25, Social Security Act 1998
[2] (R(C and W) v SSWP [2015] EWHC 1607 (Admin)
[3] Section 7, Welfare Reform Act 2012
[4] Regulation 41, The UC, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013; section 159D, The Social Security Administration Act 1992
[5] Section 17, Social Security Act 1998
[6] Section 8(2), Social Security Act 1998
[7] Regulation 11(2), The UC, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013
[8] Section 7(1), Welfare Reform Act 2012
[9] ADM Chapter A4, paragraph A4152
