Simon Osborne looks at some of the main announcements and rule changes regarding benefit and coronavirus (COVID-19).
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 January 2021 there were 6 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. By April 2021, the increase to UC was due to apply again only until October 2021, and the WTC increase had been replaced by a one-off payment of £500.
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.
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 November 20212The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097; The Social Security (Coronavirus) (Miscellaneous Amendments) Regulations 2021, SI No. 476
• 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 Nov 20213The Employment and Support Allowance and Universal Credit (Coronavirus Disease) (Amendment) Regulations 2020, SI No.1097; The Social Security (Coronavirus) (Miscellaneous Amendments) Regulations 2021, SI No. 476
). 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
•the minimum income floor may be suspended in any case, 'where it appears expedient as a consequence of the coronavirus disease'. This is now extended until 31 July 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); The Universal Credit (Extension of Coronavirus Measures) Regulations 2021, SI 2021 No.313
•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/
‘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 chi
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, closed on 27 January 20219Reg 7 UC (MM Pilot) Regs 2019 and Memo ADM 15/20
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’.
The increase (made via increases to the standard allowance of universal credit and basic element of working tax credit) was initially for one year (ie, 2020/21) only.
In the March 2021 Budget, it was announced that the so-called 'uplift' of £20 per week to the universal credit standard allowance was to be continued for six months from April 2021 - ie, until October 2021. Subsequent legislation clarifies that this means a continuation of the additional £86.67 a month to standard allowances, ending in any assessment period that falls after 6 October 2021.10The Universal Credit (Extension of Coronavirus Measures) Regulations 2021, SI 2021 No.313
However, the £20 increase to the working tax credit basic element will not be continued from April 2021. Instead, there will be a one-off payment (ie, for the whole year) of £500, paid to 'eligible working tax credit claimants'.
As in 2020, 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 2020.11R (CC) v HM Treasury & Anor  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 app12Department 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 202013SIs 2020 Nos.287, 374, 427, 539, 681, 829, 1638
. 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 are self-isolating and so are unable to work for the period they are required to self-isolate, or otherwise for 11 days (or longer if they still have symptoms) starting from when they had symptoms or if earlier when they were notified of the positive test. A claimant living with such a person (or in that person’s household bubble), is also treated as incapable of work for the period that they are themselves required to self-isolate and so are unable to work, or otherwise for 11 days from the beginning of the symptoms or if earlier notification of the positive test. 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.
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 shielding14The Tax Credits (Coronavirus, Miscellaneous Amendments) Regulations 2020, SI No.534
. From 14 January 2021, amendments ensure that existing provisions regarding those on maternity, adoption, paternity or shared parental leave or in a period of ill-health also refer to being treated as in full-time work due to coronavirus. Also, time absent from work in self-isolation under Test and Trace (or similar arrangements) is ignored. Test and Trace payments and Covid Winter grant and similar payments are ignored as income for tax credits15The Tax Credits, Childcare Payments and Childcare (Extended Entitlement) (Coronavirus and Miscellaneous Amendments) Regulations 2020, SI No. 1515.
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.
In the March 2021 Budget, it was announced that the Coronavirus Job Retention Scheme will be continued until the end of September 2021, and that HMRC '...will continue to treat working tax credit claimants...who have been furloughed, or experience a temporary reduction in their working hours as a result of COVID-19, as working their normal hours for the duration 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 provided16HMRC 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 credits17Evidence 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 2020.18The 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.’19DWP 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 31 Aug 2021.20The Social Security (Coronavirus) (Further Measures) (Amendment) and Miscellaneous Amendment Regulations 2020 (SI No. 1201); The Social Security (Coronavirus) (Miscellaneous Amendments) Regulations 2021, SI No. 476
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 summer of 202021Social 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. Amended regulations from 25 March 2021 clarify that assessments (work capability assessments, PIP and industrial injuries disablement benefit) may be carried out by video, as well as by phone or in person.22The Social Security (Claims and Payments, Employment and Support Allowance, Personal Independence Payment and Universal Credit) (Telephone and Video Assessment) (Amendment) Regulations 2021, SI No. 230; The Social Security (Industrial Injuries Benefit and Personal Independence Payment) (Telephone and Video Assessment) (Miscellaneous Amendments) (Scotland) Regulations 2021 Scottish SI No.97
From April 2021, the DWP have begun to use face-to-face assessments again in appropriate cases where the assessment cannot be done by other means.
For carer's allowance, provisions currently due to expire on 31 Aug 2021 allow a temporary break in care in cases of coronavirus (regarding either carer or the disabled person).23The 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); The Carer’s Allowance (Coronavirus) (Breaks in Care) (Scotland) Amendment Regulations 2021 (Scottish SI No.140); The Social Security (Coronavirus) (Miscellaneous Amendments) Regulations 2021, SI No. 476
Amendments provide that from 31 May 2021 until 31 August 2021, a child who has left school early due to the cancellation of exams because of coronavirus continues for child benefit purposes to have a terminal date of 31 August (and so still be treated as a qualifying young person until that date), provided that they have not turned 20.24The Child Benefit (General) (Coronavirus) (Amendment) Regulations 2021, SI 2021 No.630
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.25The 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 September 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.26Courts 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; Amended General Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal, March 2021, via judiciary.uk; Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal, March 2021, 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.