‘Closing’ universal credit claims

Issue 260 (October 2017)

Martin Williams looks at the DWP practice of ‘closing’ claims to universal credit (UC).

Introduction

It appears to be common for some people attempting to claim UC to have their claims ‘closed’. CPAG is aware of two situations in which this appears to be happening.

The first is where the claimant has failed to book, or has booked but failed to attend, a Jobcentre Plus interview to verify her/his identity.

The second is where the claimant is said not to have accepted a claimant commitment on the ground that s/he did not book, or did not attend, a ‘commitments interview’.

The situation is further complicated by the fact that frequently claimants who have had their claims ‘closed’ are told to reclaim. At present, when a claim is closed in this way, claimants can no longer post to their online journals (meaning the only way to challenge the decision is in writing or by telephone). If a new claim is made, claimants actually lose all access to their journals as new journals for the new claims are created – meaning they cannot even access the refusal letter (if one was posted to the journal).

There is good reason to think that most of the decisions to ‘close’ claims in this way are unlawful and should be challenged.

‘Closing’ claims and appeal rights

The concept of ‘closing’ a claim does not exist in law. When a claim for benefit is made, the decision maker has a duty under section 8(1)(a) of the Social Security Act 1998 to decide whether to make an award of benefit in respect of that claim or not. There may also be situations where the decision maker needs to decide whether something actually constitutes a claim or not. If the Secretary of State decides something is not a procedurally effective claim, he would still be making a decision under section 8(1)(a). Importantly, in such cases there is a right of appeal under section 12, once the procedural formality of having had a mandatory re-consideration is complied with.

Arguably, claimants who make new claims in either of the situations discussed below and ask for backdating to when they made their original claim should be regarded as having applied for mandatory reconsideration of the decision refusing that original claim (by extension of the reasoning in R(JSA) 2/04). That is unlikely to be picked up by the DWP but can be highlighted in any case where the DWP says that a subsequent mandatory reconsideration request is late.

Failure to attend an identity interview

As part of the process of making a claim for, and getting an award of, UC, claimants are required to verify their identity. It is possible for some claimants to do this using an online ID verification process.1 Claimants who cannot do the online verification are asked to telephone the DWP and book an appointment at the job centre to verify their identity.

Where a claimant either does not ring up to book the appointment or does not attend the appointment, it appears that a decision is made to ‘close’ (ie, in effect refuse) her/his claim for UC.

In a freedom of information (FOI) request response,2 the DWP has stated that the legal requirement of a claimant to book and attend this interview is in regulation 37 of the UC, etc. (Claims and Payments) Regulations 2013, SI No.380. The DWP states that a ‘claim cannot be closed for failing to attend an interview for this purpose until a period of one month has expired since the information was requested’. In cases CPAG has seen, less than one month has been given to allow the claimant to set up and attend the interview.

However, the DWP is also wrong if what it is suggesting is that a failure to meet the duty to provide information in regulation 37 provides a freestanding reason for refusing a claim – that is confirmed with regard to similar provisions that apply to legacy benefits in R(IS) 6/04, CIS/51/2007 and CIB/52/2007. In any event, it is not even clear that being told to ring up and book an interview counts as a request for information under regulation 37.

The only possible basis for refusing a claim in this sort of case might be that the claimant has failed the national insurance number (NINO) test in section 1(1A) – (1C) of the Social Security Administration Act 1992. However, that is not how the DWP has explained what it is doing.

The best advice for claimants in this situation is to seek revisions (mandatory reconsiderations) of the refusal of their UC claims. In any case where less than a month was given to book and attend the interview, the DWP should change the decision. Even if a month was given, arguably phoning up to make an appointmentis not ‘providing information’ and so there will have been no failure to comply with regulation 37. Finally, where a claimant has not been directly asked to provide a NINO in the process of making a claim, it is difficult to see how s/he can have failed the NINO requirement.

Failure to arrange/attend a commitments interview

Under section 4(1)(e) of the Welfare Reform Act 2012, a claimant must have ‘accepted a claimant commitment’ to fulfil the basic conditions of entitlement to UC.

During the online claim process, a claimant is asked to accept a basic commitment. Arguably, that is sufficient to meet this condition until a more detailed commitment is presented to the claimant for agreement. Until that happens, it is difficult to see how a claimant can be said to have failed to accept a claimant commitment. Under section 14(5), a claimant is only regarded as having accepted a commitment for the purposes of section 4(1)(e) if s/he accepts the most up-to-date version of it. But, without a new commitment having been drawn up and presented to a claimant for agreement, then the online version would have to be regarded as sufficient.

The DWP appears to accept that this is the correct position in its FOI request response:

‘The claimant commitment must be drawn up and either sent to the claimant in advance of the scheduled meeting or sent to the claimant after the meeting, allowing an additional 7 days for the claimant to accept it. This gives them time to make contact and, if necessary, book a further interview. It also allows us to make additional efforts to contact claimants where there is a potential vulnerability. We cannot close a claim for failing to accept a claimant commitment unless we have produced one and given the claimant reasonable opportunity to accept it.’

So, in any case where no claimant commitment has been drawn up and presented to the claimant for agreement, the claim cannot be ‘closed’ for failure to accept a claimant commitment.

That rather begs the question as to the basis on which a claim could be refused in this sort of case. There is, at the point the decision is made to refuse the claim, by definition, no award of

UC in place (‘closing’ the claim is simply a refusal to make an award in respect of the claim). If there is an award of UC in place and a claimant, other than one to whom no conditionality applies, is directed to attend an interview and does not do so, that could lead to a low or lowestlevelsanction. However, it seems doubtful that a failure to do something such as this before UC is awarded could result in a sanction. Apart from anything else, such a claimant will not have been told at this stage what s/he must do to avoid a sanction and so it is unlikely a sanction would meet fairness principles.

Instead, it seems likely that the only legal way for the DWP to refuse a claim in this situation is to draw up a claimant commitment for a claimant who had not booked or attended an interview and ask her/him to agree it, wait for the period the claimant was given to do this to elapse and only then refuse to make the award.

Another red herring

The DWP cites regulation 47 of the UC etc. (Decisions and Appeals) Regulations 2013, SI No.381 in its FOI request response and says it is the legislation that ‘sets out that a claim can be terminated if a claimant has not provided information/ evidence’. That is incorrect. The rule referred to is part of the ‘suspension and termination’ process. That process can only be used in a case where there is an award of UC and not when there is only a claim which has not been determined.

Thanks to Andrew Duttonof Derbyshire Welfare Rights for making the FOI request referred to in this article.


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