Tales from the food bank

The Food Bank Income Maximisation project, a partnership between CPAG and the Trussell Trust, offers a dedicated advice line, training and resources for advisers working in food banks. As the project’s first anniversary approaches, Harriet Chaplin looks at some cases brought to our attention, highlighting common mistakes with the DWP’s decision-making and practice.

In our experience of cases at the food banks, most sanctions are not so much due to claimant non-compliance as due to the wrong work-related requirements being imposed or decision makers not following their own guidance and checking for good reason for non-compliance before imposing a sanction.1ADM Chapter K2, Good reason

There also seems to be difficulty in asking for revisions of sanction decisions. A UC sanction can be grounds for an ‘any time’ revision,3Reg 14(1)(c) Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381 but the work coaches responding to journal messages are often unaware of this, and respond as if the 13-month time limit for a late ‘any grounds’ revision applies. Numerous responses to revision requests state that it cannot be passed to a decision maker because the request is ‘out of time’. The advice here is to include within the revision request reference to the legislation that allows an any time revision of a sanction decision.

The basic problem here is the rules provide that earned income for any one assessment period is based on the ‘actual amounts’ received in that particular period (regulation 54 of the UC Regs 2013), and that the earning threshold for the ‘grace period’ exception for the benefit cap, is based on the conversion of the national minimum wage to a monthly amount in each of the 12 months taken into account (regulation 82). So, the claimant failed to meet the monthly February threshold figure, despite her SMP always being above the weekly amount of the threshold. CPAG considered that this constituted a breach of the claimant’s human rights. Specifically, not treating her SMP as satisfying the monthly threshold would be discriminatory under Article 14 of the European Convention on Human Rights (read with her Article 1 Protocol 1 rights) since all claimants (usually women) returning from maternity leave who (as is common) have received SMP only for at least one month of their maternity leave would be unable to rely on the UC benefit cap grace period.

In the above case, following a failure by the DWP to respond to a mandatory revision request, we sent a judicial review pre-action protocol letter. This challenged the unreasonable delay in deciding the mandatory reconsideration request and set out our argument regarding discrimination under the Convention.

We asked the DWP to revise and recalculate the decision based on this argument. D received a journal message stating the decision had been overturned and the monies owed would be repaid. The reply from the DWP legal team trusted the matter was now resolved and stated to read the journal messages. The benefit cap was removed and all money owed to D was repaid.

However, the discrimination was not actually tested before a tribunal or court, so while this was great for the client, it is likely an example of the DWP trying to avoid legal action to avoid setting a precedent.

Our legal team is interested in hearing from all claimants on maternity leave whose benefits are capped, not just those receiving SMP. If you have any such cases, please contact us at testcases@cpag.org.uk.

Schedule 4 to the UC Regs 2013 sets out the calculation for the housing cost element, including (at paragraph 7) what happens when there are rent-free weeks, which is the case in many social housing tenancies. The calculation assumes a 52-week year, but a year is not exactly 52 weeks; it is 365 or 366 days. This means there are always days in a year that are not covered by the calculation and the client is not paid housing costs for those days. In some years, there are exactly 53 Mondays and therefore 53 weeks for rental charge purposes. In years where the rental charge is over 53 weeks, the client misses out and must pay the shortfall themself.

The DWP has previously claimed that this is a landlord accounting problem, not a benefit calculation problem, and landlords can choose to move any arrears into a different financial year or absorb the cost themselves. There is a rightsnet thread that explores this idea thoroughly, wondering whether there are actually two issues, one for landlords and another for clients.4rightsnet discussion: ‘Too complicated and confusing to account for 53 week rent years in UC awards’

In 2019, the DWP responded to a request by the National Housing Federation, seemingly accepting there was an issue with the calculation. It states: ‘we are currently considering whether this formulation around weekly rents, and potentially other weekly amounts in the Universal Credit calculation, should be amended.’5National Housing Federation, 53-week rent year – what this means for Universal Credit payments, available at housing.org.uk/news-and-blogs/news/53-week-rent-year--what-this-means-for-universal-credit-payments However, since then, no changes to legislation or guidance have been made. With no changes pending, clients continue to be penalised by this policy.

If clients cannot independently manage their finances and/or benefit claim, they may have an appointee to deal with such matters. At a tribunal hearing, should the panel direct its questioning to the client or the appointee? The following examples illustrate the differing approaches taken in practice.

What does the law say? A Practice Direction includes binding procedures on taking evidence from child, vulnerable adult and sensitive witnesses.6Practice Direction: Child,Vulnerable Adult and Sensitive Witnesses, 30 October 2008, available at judiciary.uk It orders the tribunal to consider whether the vulnerable person must be questioned at all; they will only be questioned if it is necessary ‘to enable the fair hearing of the case’ and does not prejudice their welfare. It also directs the tribunal to reflect on how it questions a vulnerable person.

The Upper Tribunal, in RT v SSWP (PIP) [2019] UKUT 207 (AAC); [2020] AACR 4, reflected on the fact that, strictly speaking, a large proportion of appellants before the First-tier Tribunal count as ‘vulnerable’ adults. The tribunal should therefore record if it has decided to follow the Practice Direction and, if so, how it has followed it. In the later decision in JE v SSWP (PIP) [2020] UKUT 17 (AAC) (Bulletin 275, p12), the judge said that a ‘learning point’ from the case was that representatives making appeal submissions should, where possible, point out claimant special needs including needs about evidence giving.

F won their appeal. The tribunal may have considered the Practice Direction and determined that it was necessary for a fair hearing to question the client directly, possibly so the communication issues could be fully understood.

Unfortunately, DWP error (eg, in sanction decision-making), inflexible law (eg, regarding benefit cap and housing costs) and problems for ‘vulnerable’ claimants remain common, massively impacting the lives of benefit claimants, forcing them to attend the food bank more frequently and keeping families in poverty.