Benefits and coronavirus: an overview
Simon Osborne looks at some of the main announcements and rule changes regarding benefit and coronavirus (COVID-19).
Introduction
The coronavirus pandemic had an immediate impact on demand for benefit support. In particular the numbers of universal credit claimants rose sharply in spring 2020, and by October 2020 there were over 5.5 million people claiming universal credit. The early official response regarding benefits (from March 2020) focused in particular on:
statutory sick pay (SSP)
universal credit (UC); and
employment and support allowance (ESA).
Benefit increases (UC, WTC and HB (LHA) only) were announced for 2020/21. Subsequently, new rules and modifications of guidance and practice affected benefit matters such as face-to-face medical assessments and tribunal hearings, conditionality (for example, work search requirements) in UC an jobseeker's allowance, and work and childcare requirements in tax credits.
Following problems with some claimants on tax credits claiming UC as a response to coronavirus and then finding (in particular because of capital rules) that they were not entitled to UC but neither could they return to tax credits, the DWP issued a reminder in guidance for the public that claiming UC terminates entitlement to tax credits. (Although not mentioned in the reminder, other entitlement to legacy means-tested benefit is also terminated by a claim for UC.) However, there is no official scheme for helping those affected either to return to tax credits or qualify for UC.
CPAG has pressed the government on further changes to address the impact of the benefit cap and two-child limit and to address the extra costs incurred by parents as a result of school closures through a £10 per week uplift on child benefit.
ESA
Regulations introduced in March 2020 provided (for limited periods subject to review) that, on a discretionary basis1The Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020, SI No.289:
• waiting days may be disapplied for anyone infected with COVID-19 or who is in ‘isolation’ because of COVID-19, or who is caring for child in her/his household who is so affected ( now due to end on 12 May 20212The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097);
• anyone infected with COVID-19 or who is in ‘isolation’ because of COVID-19, or who is caring for child in her/his household who is so affected, may be treated as having limited capability for work (now due to end on 12 May 20213The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097). The DWP re-asserted the need for a ‘fit note’ as evidence of incapacity in most cases from 10 July 2020. However updated guidance in September 2020 clarified that those self-isolating and off work for 7 days or more could instead provide an ‘isolation note’ available from NHS 111, and those following ‘shielding’ instructions (which although paused generally may apply in areas with local restrictions) can instead provide the official ‘shielding’ letter from the doctor or health authority4www.gov.uk/guidance/new-style-employment-and-support-allowance-detailed-guide#if-youve-been-affected-by-coronavirus-covid-19.
UC
•the minimum income floor may be suspended in any case, 'where it appears expedient as a consequence of the coronavirus disease'. This is to be extended until 30 April 20215Provision in SI 2020 No.289 replaced by provision in SI 2020 No.317; The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201).
•where UC has been refused or terminated because of excess income, from 21 May 2020 the claimant can be treated as making a new claim for the next five of what would been her/his monthly assessment periods. The explanatory material issued with the relevant regulations indicated that the intention was to apply this in the context of excess income following payments under the Coronavirus Job Retention Scheme or the Self-Employed Income Support Scheme. However, no such restriction appears in the wording of the regulations themselves, and subsequent official guidance seems to imply that they can apply in any excess income case6The Universal Credit (Coronavirus) (Self-employed Claimants and Reclaims) (Amendment) Regulations 2020, SI No.522; ADM Memo 10/20. See the article ‘UC, SEISS payments and automatic reclaims’, Welfare Rights Bulletin 277 (August 2020).
•there is no equivalent in UC of the ESA rule allowing a claimant to be treated as having limited capability for work in cases of diagnosis with COVID-19 or isolation. (A UC equivalent was introduced initially, but was then removed from 30 March 20207The Social Security (Coronavirus) (Further Measures) Regulations 2020, SI No.371.)
Regarding UC and childcare, one of the basic requirements remains that the claimant is in paid work (or is due to start, or was working within the last month). Advice on the gov.uk 8websitewww.understandinguniversalcredit.gov.uk/new-to-universal-credit/children-and-childcare/ says,
If you are getting Universal Credit, you will be reimbursed costs for childcare that has taken place and you have already paid for.
You will continue to be reimbursed for childcare costs with your Universal Credit if you are a critical worker or if you are a non-critical worker who has access to registered childcare.’
Regarding ‘migration’ of claimants of current legacy benefits and tax credits to UC, in late March 2020 the piloting of the ‘managed’ migration (ie DWP-instigated) process was paused due to the coronavirus pandemic. In the meantime, ‘natural’ migration (ie caused by a claim for UC) has continued. The so-called ‘SDP gateway’, by which those entitled to the severe disability premium in legacy benefit were prevented by law from claiming UC and so from naturally migrating to UC, remains due to close on 27 January 20219Reg 7 UC (MM Pilot) Regs 2019 and Memo ADM 15/20.
Benefit increases
The government ‘worker’s support package’ announced on 20 March 2020 included an increase in UC and WTC for 2020/21. Specifically, said the government, ‘The standard rate in Universal Credit and Tax Credits will be increased by £20 a week for one year from April 6th, meaning claimants will be up to £1040 better off’.
Comment: note that in current law this increase is for one year (ie, 2020/21) only. It remains to be seen whether it is to be retained for 2021/22 and after. The reference to ‘tax credits’ was in fact a reference to the basic element of working tax credit. The Coronavirus Act 2020 confirmed that the working tax credit basic element is to be £3,040 a year for the 2020/21 tax year. The universal credit increase was via an increase of £86.67 per month to all the standard allowance rates.
There were no corresponding increases in other benefits, eg ESA. A legal challenge to the failure to increase carer’s allowance was rejected by the High Court in October 202010R (CC) v HM Treasury & Anor [2020] EWHC 2817 (Admin) (23 October 2020).
Statutory sick pay (SSP)
The government announced on 20 March 2020 that employees self-isolating because of coronavirus symptoms would be able to provide their employers with an online ‘isolation’ note, instead of a fit note from their GP. The isolation note is available online via the NHS and NHS111 website or via the NHS app11Department of Health and Social Care press release, ‘Online isolation notes launched – providing proof of coronavirus absence from work’, 20 March 2020, at gov.uk/government/news/online-isolation-notes-launched-providing-proof-of-coronavirus-absence-from-work.
A series of amendment regulations were issued throughout the spring and summer of 202012SIs 2020 Nos.287, 374, 427, 539, 681, 829. The main effects of these amendments are:
•‘waiting days’ for SSP do not apply in cases of incapacity for work related to coronavirus.
•anyone who is ‘isolating … to prevent infection or contamination with coronavirus' (meaning where the person has ‘symptoms’ of coronavirus and is staying at home for 7 days, or is living with such a person and is staying at home for 14 days) and is as a result unable to work is deemed to be incapable of work for SSP purposes.
• a person who has received official advice to ‘follow rigorously shielding measures' because (under public health guidance) they are extremely vulnerable to severe illness from coronavirus due to an underlying health condition (and who is as a result unable to work) is also deemed to be incapable of work for SSP purposes. a person who has been notified that they have had contact with a person with COVID-19 and who is self-isolating for 14 days (from the last day of contact or the date specified in the latest notification sent to them) and who is as a result unable to work, is also treated as being incapable of work. Following the introduction of the possibility of forming household 'bubbles', rules allow this to apply in cases where the person is isolating because of coronavirus in a member of their 'linked' household (in England and Wales) or their 'extended' household (in Scotland), and they are unable to work as a result.
•a claimant is also treated as incapable of work where they have tested positive for coronavirus and is self-isolating for 10 days (or longer if they still have symptoms) from when they had symptoms or if earlier when they were notified of the positive test, or the claimant is self-isolating in that period because they live with such a person (or they are in the claimant’s household bubble), and the claimant is unable to work as a result. Someone following official advice to self-isolate for up to 14 days before admission to hospital for surgery (or other hospital procedure) is also treated as incapable of work.
Tax credits
Regarding WTC and work, regulations introduced on 23 May 2020 allow someone to remain entitled (ie still be regarded as in sufficient work as per their usual hours) if her/his work is stopped or the hours reduced due to coronavirus. This applies to furloughed, employed or self-employed workers where hours are reduced, including where unable to work as a consequence of shielding13The Tax Credits (Coronavirus, Miscellaneous Amendments) Regulations 2020, SI No.534.
Where a person stops being a furloughed worker under the Coronavirus Job Retention Scheme, or they are no longer impacted by coronavirus, there is a further period of up to 8 weeks in which this continues to apply, as long as they intend to return to working sufficient hours. Where this is not the case, there is a four week run-on period. HMRC said that people with reduced hours due to coronavirus need not contact HMRC about the change, the run-ons would apply until the end of the Coronavirus Job Retention Scheme.
Regarding childcare costs in WTC, HMRC had continued to pay the childcare element for people still incurring registered childcare costs, even if childcare had not been provided due to coronavirus. However, since 7 September 2020, the childcare element of WTC is no longer paid for childcare that is not actually being provided14HMRC press release 5 August 2020 gov.uk/government/news/support-for-working-families-affected-by-coronavirus-covid-19-given-an-extra-boost.
It has been confirmed that the government have no plans to compensate (or otherwise help) those tax credit recipients who claimed UC only to find that they are not entitled to it, and are then prevented (following the abolition of tax credits for most new claimants) from reclaiming tax credits15Evidence Session to Work and Pensions Select Committee, 30 September 2020.
Conditionality (UC and JSA)
Work search and work availability requirements were suspended for all UC and JSA claimants for three months from 30 March 2020.16The Social Security (Coronavirus) (Further Measures) Regulations 2020, SI 371 This expired on 30 June 2020 and conditionality has resumed, at the discretion of the work coach. The DWP say that claimants will not be required to do anything ‘unreasonable’ and that claimant commitments will be tailored to reflect restrictions because of coronavirus. The Secretary of State has said that during the coronavirus pandemic there will be a ‘light touch…. It's not our intention to particularly go out actively seeking to impose sanctions or similar and I expect if there are any applied at all it will be very rare.’17DWP Touchbase Coronavirus special, 3 July 2020; Secretary of State in evidence to the Work and Pensions Select Committee, 22 July 2020
A provision allowing someone on JSA to continue to be regarded as being capable of work (ie and so to remain entitled to JSA) in coronavirus cases, including where caring for a child infected with Covid-19 or isolating due to coronavirus, has been extended until 12 May 2021.18The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201)
Medical assessments
Face-to-face medical assessments for disability benefits were ‘paused’ in March 2020 (no legislative change was made). But assessments via telephone interviews began to be tested and have been rolled out during the spring and summer19Social Security Benefits: Medical evidence: Written question 58015, 17 July 2020, via parliament.uk. The DWP may carry out a PIP assessment by phone, and can contact a claimant by phone to ask additional questions for a DLA or AA claim but in practice is less likely to do so. Work capability assessments (UC and ESA) are also being carried out by phone.
Carer’s allowance
For carers allowance, provisions now due to expire on 12 May 2021 (England and Wales) or in Scotland on 13 May 2021 (Scotland) allow a temporary break in care in cases of coronavirus (regarding either carer or the disabled person).20The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201); The Carer’s Allowance (Coronavirus) (Breaks in Care) (Scotland) Amendment Regulations 2020 (Scottish SI No.350)
Appeals
In April 2020, the tribunal procedure rules were amended to allow a tribunal to decide an appeal without a hearing (ie, on the papers alone) providing the matter is urgent, it is not reasonably practicable for there to be a hearing (including via video or telephone) and it is in the interests of justice to decide the case.21The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020, SI No.416 Contingency arrangements introduced at the start of lockdown, regarding deciding cases on the papers alone or via a telephone hearing as a default during the coronavirus pandemic, have been extended to 18 March 2021, with new guidance on the concept of a ‘hybrid’ hearing, where there are some participants attending a physical tribunal and other participants attending the same hearing remotely.22Courts and Tribunals Judiciary, Senior President of Tribunals, Amended Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal, 14 September 2020, via judiciary.uk
In practice, full-time judges have sifted appeals and where a hearing has been requested and the judge believes that it is required, telephone hearings have been held in many cases. For a telephone hearing, the claimant will receive detailed instructions before the hearing and the telephone call will be free. Representatives can also participate in a telephone hearing as can a representative of the decision-making agency.
Support for renters
The workers support package announced in March 2020 included the announcement of,
Nearly £1bn of additional support for renters, through increases in the generosity of housing benefit and Universal Credit. From April, Local Housing Allowance rates will pay for at least 30% of market rents in each area.
No further increases in housing benefit or universal credit support for rental costs has been made.
More widely, the initial announcement (March 2020) of a ban on evictions had been replaced by September 2020, by more limited protection, as in the following announcement23‘Government sets out comprehensive support for renters this winter’, Ministry of Housing, Communities and Local Government press release, 10 September 2020, via gov.uk/government:
The government has changed the law to increase notice periods to 6 months meaning renters now served notice can stay in their homes over winter, with time to find alternative support or accommodation.
The only exceptions to this are the most egregious cases, including where tenants have demonstrated anti-social behaviour or committed fraud, and the landlord rightly would like to re-let their property to another tenant.
The Housing Secretary has also today confirmed that with coronavirus still posing a risk, if an area is in a local lockdown that includes a restriction on gathering in homes, evictions will not be enforced by bailiffs…
Subsequently, in the light of the general lockdown in England in force until at least 2 December, the Housing Secretary announced that, ‘Measures, including the pause on evictions starting in December, mean evictions will not be enforced until the 11 January 2021 at the earliest, supporting individuals and families who have found themselves in financial difficulty through no fault of their own.’24'New protections for renters over duration of national restrictions’, Ministry of Housing, Communities and Local Government press release, 5 November 2020, via gov.uk/government
 
1     The Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020, SI No.289 »
2     The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097 »
3     The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097 »
4     www.gov.uk/guidance/new-style-employment-and-support-allowance-detailed-guide#if-youve-been-affected-by-coronavirus-covid-19 »
5     Provision in SI 2020 No.289 replaced by provision in SI 2020 No.317; The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201) »
6     The Universal Credit (Coronavirus) (Self-employed Claimants and Reclaims) (Amendment) Regulations 2020, SI No.522; ADM Memo 10/20. See the article ‘UC, SEISS payments and automatic reclaims’, Welfare Rights Bulletin 277 (August 2020) »
7     The Social Security (Coronavirus) (Further Measures) Regulations 2020, SI No.371 »
8     websitewww.understandinguniversalcredit.gov.uk/new-to-universal-credit/children-and-childcare/ »
9     Reg 7 UC (MM Pilot) Regs 2019 and Memo ADM 15/20 »
10     R (CC) v HM Treasury & Anor [2020] EWHC 2817 (Admin) (23 October 2020) »
11     Department of Health and Social Care press release, ‘Online isolation notes launched – providing proof of coronavirus absence from work’, 20 March 2020, at gov.uk/government/news/online-isolation-notes-launched-providing-proof-of-coronavirus-absence-from-work »
12     SIs 2020 Nos.287, 374, 427, 539, 681, 829 »
13     The Tax Credits (Coronavirus, Miscellaneous Amendments) Regulations 2020, SI No.534 »
14     HMRC press release 5 August 2020 gov.uk/government/news/support-for-working-families-affected-by-coronavirus-covid-19-given-an-extra-boost »
15     Evidence Session to Work and Pensions Select Committee, 30 September 2020 »
16     The Social Security (Coronavirus) (Further Measures) Regulations 2020, SI 371  »
17     DWP Touchbase Coronavirus special, 3 July 2020; Secretary of State in evidence to the Work and Pensions Select Committee, 22 July 2020 »
18     The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201) »
19     Social Security Benefits: Medical evidence: Written question 58015, 17 July 2020, via parliament.uk »
20     The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201); The Carer’s Allowance (Coronavirus) (Breaks in Care) (Scotland) Amendment Regulations 2020 (Scottish SI No.350) »
21     The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020, SI No.416 »
22     Courts and Tribunals Judiciary, Senior President of Tribunals, Amended Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal, 14 September 2020, via judiciary.uk »
23     ‘Government sets out comprehensive support for renters this winter’, Ministry of Housing, Communities and Local Government press release, 10 September 2020, via gov.uk/government »
24     'New protections for renters over duration of national restrictions’, Ministry of Housing, Communities and Local Government press release, 5 November 2020, via gov.uk/government »