Right word, right place: a welfare rights tool

Owen Stevens sets out the importance of the language welfare rights advisers use to describe our clients’ legal problems. The article describes some commonly misused language where greater accuracy would be helpful.

Social security problems are, in most part, legal problems. Unhelpfully, the DWP commonly uses legally inaccurate language across the social security system. If welfare rights advisers uncritically adopt the DWP’s use of incorrect language that can often lead us to misunderstand, miscommunicate, and, ultimately, fail to address our clients’ problems.

There are exceptions. Some widely-used phrases, despite having no statutory basis, are widely understood and do not undermine understanding of the issue being discussed – eg, ‘backdating’ of a claim.

Of course, nobody’s perfect – but striving to use the legally correct language will usually help better understand, communicate, and address our clients’ legal problems.

The words ‘claim’ and ‘award’ are often used interchangeably – eg, ‘John has a claim for ESA’ is used when, in fact, John has an award of ESA.

Typically, benefit entitlement depends on the making of a claim for that benefit. A claim is the means by which a claimant asserts their entitlement to benefit and requests a formal decision granting that entitlement. A claim for benefit subsists until such time as the decision on the claim is made and the claim can be amended at any point prior to a decision on the claim.

A decision on a claim for benefit will result in either the making of an award of benefit to the claimant or, alternatively, in the refusal of the claim without an award being made. A claim does not exist beyond the point at which the decision on the claim is made.1s8 Social Security Act 1998

An award should not be described as a ‘claim’, and vice versa.

Benefit entitlement is typically dependent on the making of a claim for benefit or being treated as having made a claim.2s1 Social Security Administration Act 1992

It is not accurate to describe a person as ‘entitled’ to benefit if they are not actually entitled but would be entitled in the event that they were to make a claim. ‘Entitlement’ is inextricably linked to a claim having been made and an award having resulted from that claim.

Claims are often described as having been closed, as are awards. The use of the word ‘closed’ in this context obscures the fact that the DWP is making decisions,3PP v SSWP (UC) [2020] UKUT 109 (AAC), para 8 and this gives the false impression that a ‘closed’ claim or award is final and cannot be challenged using the usual methods of mandatory reconsideration and appeal.

A claim can only be disposed of by means of a decision, there is no means of ‘closing’ a claim without a decision. Likewise, an award can only be ended by means of a decision – either a revision decision or a supersession decision – there is no means of ‘closing’ an award without a decision.

‘Backdating’ is commonly used to refer to an extension of the time within which a claimant must make a claim for a particular benefit. The phrase doesn’t actually appear in the legislation in this context, but is widely understood and aids understanding. However, the phrase ‘backdating’ is often misused to refer to a change to an award by means of a supersession or revision.

A ‘supersession’ is the way that a decision awarding benefit is changed when the decision was correct at the time it was made but has since become incorrect – eg, due to a change in circumstance.4Supersessions also occur where the original decision was wrong at time it was made but for some reason cannot be revised The date from which a supersession changes an award is referred to as the ‘effective date’ of the supersession.5Determined in accordance with Chapter 3 of Part 3 of the UC etc (Decisions and Appeals) Regulations 2013, or reg 7 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 A ‘revision’ is the way that a decision awarding benefit is changed when the decision has since been shown to have been incorrect at the time it was made, and generally takes effect from the date of the decision being revised.6s9(3) Social Security Act 1998

For example, if a change means that a claimant satisfies the conditions for a carer element from a date after the date of the decision awarding benefit then the awarding decision will be superseded to include the element and the date from which that element is included is referred to as the effective date of the supersession. However, if the claimant satisfies the conditions for a carer element from a date which includes the date on which the benefit was awarded then the awarding decision will be revised to include the element. It would not be accurate, in either case, to refer to ‘backdating’ the carer element – and to do so would obscure the decision-making taking place.

Unlike in tax credits, there is no such thing as a nil award of universal credit (UC). The phrase ‘nil award’ is becoming widely used in the context of UC awards. The phrase is being used to refer to a period in which someone, who had been entitled to an award of UC, is not entitled to UC due to their income, before becoming entitled to UC again as a result of being treated as making a claim for UC in the subsequent months.7Reg 32A of the UC etc (Claims and Payments) Regulations 2013

Unhelpfully, the regulation enabling the DWP to treat these claimants as making claims for UC in the months following the end of the award is titled ‘reclaims of universal credit after nil award due to earnings’ – however, the regulation itself makes clear that the regulation applies where entitlement to an award of UC ceases.

Use of the phrase ‘nil award’ obscures: (a) the existence of the supersession decision ending the award of UC, (b) that there is no award during the period without entitlement to UC, (c) that the claimant is treated as making a claim for UC, and (d) the making of a decision on the claim they were treated as making.

‘Termination’ of an award is a form of supersession ending an award of benefit.8R(H) 4/08 It is used to refer to supersession ending benefit where a claimant has failed to provide information after payment of their award has been suspended.9Part 6 of the UC etc (Decisions and Appeals) Regulations 2013, or Chapter I of Part III of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 It should not be used to describe other supersessions carried out without using those termination powers.

‘No recourse to public funds’ (NRPF) is a condition that can be attached to an individual’s immigration status. It makes the clamant a ‘person subject to immigration control’ (PSIC).

NRPF is sometimes misused to mean ‘not entitled to benefit for a reason to do with either the immigration or the residence conditions for a particular benefit’. Misusing NRPF in this way can misidentify the problems clients are facing and send advisers down the wrong path in trying to support their clients. Advisers should instead consider whether their client should more accurately be described as a ‘person subject to immigration control’ (if the immigration conditions are the problem – NRPF is just one of a number of reasons that a person might be regarded as a PSIC); or perhaps whether they could more accurately describe the way in which their client has fallen foul of the residence conditions (if residence conditions are the problem).