Rosie Mears introduces CPAG’s new research report You Reap What You Code: universal credit, digitalisation and the rule of law, and investigates how the digital design and implementation of universal credit may contribute to errors in identifying the correct effective date for supersessions.
Introduction
On 27 June, CPAG published You Reap What You Code: universal credit, digitalisation and the rule of law. This report is an in-depth analysis of how the universal credit (UC) claims, decision-making, communicating decisions and disputes processes align with the social security legislation underpinning them, and the wider rule of law principles of lawfulness, procedural fairness and transparency.
1For an introduction to the rule of law, see P Craig, ‘The rule of law’, in House of Lords, Constitution: sixth report, 2008, available at .The research involved reviewing approximately 2,500 cases from CPAG’s Early Warning System (EWS), conducting interviews with 13 advisers and 28 UC claimants, monitoring Rightsnet discussion forums, and submitting over 50 freedom of information (FOI) requests for administrative data, guidance and training materials from the DWP.
Unlawful decisions
In Chapter 2 (‘Decision making’), we found four different reasons for UC decisions not being taken in accordance with the law. First, some errors appear to result solely from DWP officials failing to follow the UC legislation and guidance with no apparent digital dimension, such as the repeated failures to correctly calculate student income. Second, there are examples where digital design and implementation choices systematically produce the wrong decisions for claimants in certain situations – an example of this is the failure to program the inclusion of the carer element when carer’s allowance is in payment. Third, there are instances where the digital architecture of UC does not accurately reflect the decision-making framework in the legislation – for example, the DWP’s reliance on the concept of ‘claim closure’ in the UC system design when referring to five distinct decision-making mechanisms that each place different duties and obligations on the DWP and rights on responsibilities on claimants.
2The refusal of a claim for substantive grounds, the refusal of a claim for procedural grounds, the ending of an award for substantive grounds, the termination of an award for procedural grounds and the revision of an entitlement decision to remove entitlement.Finally, we have also uncovered specific digital design and implementation choices which may contribute to repeated errors in human decision making, an example of which is explored in more detail below.
Effective dates for supersessions
In the article
Universally ineffective (Bulletin 281, April 2021), we considered the importance of properly identifying the correct ground of supersession and effective date from which an award should be superseded.
The general rule is that a UC supersession on the ground of a change in circumstances should take effect from the first day of the assessment period in which the change occurs.
3Sch 1 para 20 Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381 (‘Decisions and Appeals Regulations 2013’) However, if the change means the claimant will be entitled to more UC (an advantageous change), then the claimant must notify the DWP of the advantageous change before the end of the assessment period in which the change occurs; otherwise, the supersession will only take effect from the beginning of the later assessment period in which the claimant notifies the DWP.
4Sch 1 para 21 Decisions and Appeals Regulations 2013One of the exceptions to this rule is if the change is the claimant or their family member receiving a new award or altered rate of a relevant benefit (eg, disability or carers’ benefits), in which case the supersession should always take effect from the assessment period in which the entitlement to the relevant benefit first arose or changed, regardless of when the claimant notifies the DWP.
5Sch 1 para 31 Decisions and Appeals Regulations 2013 The other main exception is if the claimant provides a good reason for reporting the change late and the DWP grants an extension.
6Reg 36 Decisions and Appeals Regulations 2013Evidence from the EWS and interviewees shows the DWP repeatedly superseding decisions from the incorrect effective date and only adding the carer element and disabled child addition from the beginning of the assessment period in which the claimant notifies the DWP about the relevant benefit, as in the case below.
An investigation into how the UC system works
The DWP has previously stated that ‘there are no underlying technical issues’ which would cause these repeated errors.
7Questions and answers from DWP Operational Stakeholder Engagement Forum conference call, 6 July 2021 We wanted to investigate this assertion.
For the DWP to supersede a UC award to add a carer element from an earlier assessment period, the case manager or work coach must make a referral to a decision maker, which may not always happen reliably. If the case manager or work coach does identify that a referral to a decision maker is necessary, they must use an internal agent ‘to-do’. We requested a list of all the UC to-dos by FOI request and identified that the only relevant names were the ‘Refer to a decision maker (late reporting of a change)’ and ‘Make a decision (late reporting of a change)’ to-dos.
8We discovered no specific internal agent to-do for dealing with a new or altered award of a relevant benefit as a distinct process from referring other late reported changes to a decision maker. We requested a screenshot of the ‘late reporting of a change’ to-dos and identified no specific instructions or questions for agents to act on the notification of a new or altered award of a relevant benefit.
9FOI2022/13818 (not available online). The to-do has been updated since this FOI response but the process remains the same. Instead, officials are asked to submit or decide on the claimant’s reason for reporting a change late. The DWP has confirmed that an agent would use the ‘other’ reason option and the free text box to explain the reason for the referral to the decision maker in the to-do.
10Email from the DWP to CPAG, 4 April 2023In the report, we propose that the name and use of a single to-do called ‘late reporting of a change’ in two situations which are treated differently in the legislation may partially explain why DWP officials repeatedly wrongly treat notifications of a relevant benefit as advantageous changes that have been reported late. We have recommended that the DWP create a new to-do which deals explicitly with increases in UC caused by a new or altered award of a relevant benefit.
A lack of transparency
Throughout the research, we have faced difficulty in determining whether some repeated mistakes in UC decision making and administration are caused solely by human error, due to a programming error, or due to a digital design feature which encourages DWP officials to make the same mistakes. Although we successfully got a screenshot of the ‘Make a decision (late reporting of a change)’ to-do due to its inclusion in a set of training materials, the DWP has stated it could not provide screenshots of other internal agent to-dos we requested via FOI due to UC’s ‘dynamic’ and ‘branching’ nature.
11FOI2021/07752, available at , and FOI2022/05415, available at If it is the DWP’s intention to build a UC interface which is as self-explanatory as possible, therefore reducing the need for officials to check separate decision-making guidance or legislation, it is all the more essential that we have access to what the interface looks like for DWP agents.
12FOI2021/92236, available at Please see the full report and executive summary available at: .