Coronavirus and benefits: a round-up of recent changes

Mark Willis rounds up important coronavirus-related changes in rules and practice during the summer.

At the time of writing, there have been eight separate amendments to the statutory sick pay (SSP) regulations since the start of lockdown. The period that a person who has symptoms of coronavirus (however mild), and is unable to work as a result, is treated as incapable of work has increased from seven to 10 days.1Statutory Sick Pay (General) (Coronavirus Amendment) (No.5) Regulations 2020, No.829 However, this no longer applies once that person has been tested for coronavirus and notified of the result. A person who has tested positive for coronavirus (and is unable to work as a result) is treated as in capable of work for at least 10 days, starting from the onset of symptoms, or from the date of notification of a positive test if that is earlier, including asymptomatic cases. If that person still has symptoms after 10 days, s/he is treated as incapable of work until s/he no longer has symptoms of coronavirus. For a person who has tested negative for coronavirus, s/he is no longer treated as incapable of work from the date of notification, but is still eligible for SSP from day one of her/his illness with no waiting days.2Reg 2, Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No.2) Regulations 2020, No.681 People in the same ‘linked’ household in England or ‘extended’ household in Scotland and Wales (‘support bubble’) as a person who has tested positive for coronavirus (and is unable to work as a result) are also treated as incapable of work for at least 10 days and until that person no longer has symptoms.3Reg 2, Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No.2) Regulations 2020, No.681

A person who has been notified to isolate prior to admission to hospital for surgery or other procedure (and is unable to work as a result) is also treated as incapable of work, for the period of up to 14 days as notified by the NHS.4Statutory Sick Pay (General) (Coronavirus Amendment) (No.6) Regulations 2020, No.892 People who are shielding are treated as incapable of work, but only while they have a current notification to shield. Shielding was paused from 1 August across the UK, but if it is reintroduced, including on a local basis, then the SSP rule applies again.

Work search and work availability requirements were suspended for all universal credit (UC) and jobseeker’s allowance(JSA) claimants for three months from 30 March 2020 – this expired on 30 June 2020 and conditionality has resumed at the discretion of the work coach. 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.’5Dr Therese Coffey giving evidence to the Work and Pensions Committee, 22 July 2020

Claimants in work, or treated as in work while impacted by coronavirus (see ‘Tax credits and coronavirus’, Bulletin 276), can continue to be entitled to the childcare element of working tax credit (WTC) for registered childcare costs.

HM Revenue and Customs 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 being provided.6HMRC press release, ‘Support for working families affected by coronavirus (Covid-19) given an extra boost’, 5 August 2020

From 25 September 2020, a further amendment has removed an anomaly and added some clarification.7Tax Credits (Coronavirus, Miscellaneous Amendments) (No.2) Regulations 2020, No.941 Payments from the Self-Employment Income Support Scheme and other coronavirus-related self-employed support payments count as income for tax credits purposes. However, as they are already counted as taxable income under the Finance Act 2020, they do not need to be separately counted for tax credits purposes, as this would mean they were counted twice, so the specific inclusion of such payments as trading income for tax credits has been removed. The amendment also removes the specific disregard of the £60,000 NHS and social care death in service payments, as these would not count as income in any event because they are capital payments. Payments under the new NHS Test and Trace Self-Isolation Payment Scheme (see below) or any other similar scheme in Wales, Scotland or Northern Ireland are disregarded as income. The definition of ‘furloughed’ is also amended to cover workers on ‘flexible furlough’, so that they are still treated as in work for WTC purposes, regardless of actual hours currently worked.

Face-to-face assessments for disability benefits remain suspended, but paper-based or telephone review and reassessment activity resumed in July.8DWP press release, ‘Face-to-face assessment suspension continues for health and disability benefits’, 6 July 2020 The DWP may carry out a personal independence payment assessment by phone (a piloted roll-out began in March), and the claim can be refused or award ended if the claimant refuses to take part in a telephone assessment. It can contact a claimant by phone to ask additional questions for a disability living allowance or attendance allowance claim but is less likely to do so. Work capability assessments are also being carried out by phone in some cases (a piloted roll-out began in May). If someone cannot take part by phone or needs extra help to do so, this should be explained as soon as possible. A conference call can be set up with the client, including a friend, relative, advocate or adviser if requested.

The First-tier Tribunal is continuing to deal with social security appeals, but, via a combination of temporary rules and amended HM Courts
and Tribunals Service practice, this will normally be decided on the papers or via a telephone hearing.9judiciary.uk/wp-content/uploads/2020/08/17-June-20-SPT-Social-Entitlement-Chamber-Frequently-Asked-Questions-002.pdf . See also ‘Unappealing tribunals and coronavirus?’, Bulletin 276 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.

In the Upper Tribunal, the judge may decide that an appeal does not need a hearing and will be decided on the papers only. Where there is to be an oral hearing, the judge will decide whether to hold a face-to-face hearing or a remote hearing by audio or video, depending on a number of factors, including the views of the parties and their ability to attend. The Upper Tribunal in England and Wales is operating under significant administrative constraints and considerable delays, while in Scotland it has been able to return to normal business, with most cases decided on the papers.10Upper Tribunal Administrative Appeals Chamber, Revised Guidance for Users in England and Wales from 21 August 2020, 21 August 2020

Contingency arrangements introduced at the start of lockdown have been extended to and participants attending the same hearing remotely.11Senior President of Tribunals, Amended General Pilot Practice Direction: contingency arrangements in the First-tier Tribunal and the Upper Tribunal, 14 September 2020

From 28 September, a new £500 ‘Test and Trace support payment’ has been introduced in England. The payment is for people who are employed or self-employed, who have been notified to self-isolate by the NHS, are unable to work from home and will lose income as a result.12Department of Health and Social Care press release, ‘New legal duty to self-isolate comes into force today’, 28 September 2020 Eligible recipients must be in receipt of UC, WTC, income-based JSA, income-related employment and support allowance, income support, housing benefit or pension credit, but local authorities have discretionary funds to make payments to others on hardship grounds. From 12 October in Scotland, a similar £500 Self-Isolation Support Grant will be administered by local authorities, and an equivalent £500 payment has been announced for Wales. The policy intention is that these payments will not affect entitlement to benefits.