Important update
The address for DWP social security pre action correspondence changed in December 2023. The templates have been amended and should be downloaded afresh every time you need them to ensure you are using the most up to date version.
Please do not send any of the CPAG template pre action letters to DWP Legal Advisors either by post or by email.
Warning: these letters are for advisers
Please don't send these letters unless you have an adviser acting for you.
If you are a member of the public with a problem you feel could be resolved using one of these letters, it is important to seek advice to confirm whether judicial review is appropriate.
If you do not have an adviser to act for you, you may be able to find one on advicelocal.uk
Only use in England and Wales
If you intend to use any of these letters in Scotland, please use with caution. The pre-action protocol does not apply in Scotland, so changes will be needed. Find out more about some of these changes.
Other benefits and payments
Bereavement support payment
Gatekeeping (refusal to accept claims)
JR103 Refusal to accept a BSP claim because the claimant was co-habiting rather than married to the deceased at the time of their death - V2. This letter has been removed due to the coming into force of the Bereavement Benefits (Remedial) Order 2023.
Child benefit
Priority between claimants
JR113 Failure to exercise discretion to remove child benefit from one parent and award to another where: shared custody, court order, history of domestic violence, and CB already in payment given as reason not to do so (not all grounds may be relevant to your client and the template can be edited accordingly (last updated June 2021) Note: includes power to split Child Benefit payments - refusal to do so could be framed as a separate challenge - please seek assistance if needed [email protected]. Removed - please contact [email protected] if you have a client in this situation.
Right to reside
NOTE this letter will need editing to confirm your client has a qualifying right to reside - ie, if s/he is not British or Irish that s/he has either:
- EU Settled Status, or
- EU Pre-Settled Status and a qualifying Right to Reside under the EEA Regs, or
applied to the EU Settlement Scheme and is awaiting a decision and has a qualifying Right to Reside under the EEA Regs, or - leave to enter or remain in the UK other than pre-settled status or leave to enter as a holder of an EUSS Family Permit of Travel Permit
- non-EEA leave to remain
Backdating following granting of refugee status
JR98 Refusal to backdate child benefit to date first claimed asylum rather than date successfully claimed asylum, when refugee status granted on same facts as when first applied for asylum (This letter has been removed as HMRC guidance is now correct following use of template JR98 by Manchester Citizens Advice Bureau. Please seek a mandatory reconsideration instead, an MR template is available).
Gatekeeping or delay while claimant waits for a NINo
Please contact [email protected] and we will prepare a template.
Cost of living payments
Council tax reduction
Discretionary housing payments
If a DHP is refused because it has been requested on a long term rather (than short term basis) please get in touch, and see Halvai (R on the application of) v London Borough of Hammersmith and Fulham [2017] EWHC 802 (Admin) (9 March 2017).
If DHP is refused because PIP/DLA has been taken into account as income, please get in touch (and include a copy of your local authority's DHP policy).
Employment and support allowance
NI credits only new-style ESA claims
(Note: from 15 December 2021 regulations provide that for claims for UC made on or after 15 December in order to be able to get UC whilst 'receiving education', the claimant must have LCW on a date before starting to receive education. The intent was to close off the so-called 'workaround' of someone already receiving education applying for ESA (and getting LCW) before applying for UC. The explanatory memorandum to the regulations states:
'2.1 The purpose of this instrument is to amend one of the exceptions to the requirement to not be receiving education which determines entitlement to Universal Credit (UC). This amendment provides that a person who is entitled to attendance allowance (AA), disability living allowance (DLA), child disability payment (CDP) or personal independence payment (PIP) must have been determined to have limited capability for work (LCW) before the person starts undertaking a course of education.
2.2 This amendment closes off a ‘workaround’ whereby an existing disabled student makes a claim to new-style (contributory) employment and support allowance (NS ESA) in order to be referred for a work capability assessment (WCA) so that, if the person is subsequently determined to have LCW, they could then claim and be entitled to UC - but this is contrary to the policy intent, as set out below at paragraphs 7.1 and 7.2.')
Refusal to pay / reinstate payment
Delay
WCA - home visit not offered
Award ended before WCA
Reasons for WCA decision
Students
Flexible support fund
Flexible support fund for training
Flexible support fund for childcare costs
JR132 (as above)
Note: permission to appeal to the Supreme Court was refused in R (Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482. The UC childcosts element is therefore not available for 'upfront' childcare costs. Consider the FSF where available.
Flexible support fund for travel costs
Where face-to-face Jobcentre appointments are required more frequently than once every 2 weeks, DWP guidance states Flexible Support Payments must be paid to the value of the public transport used (using a Jobcentre Plus Travel Discount Card or other concessionary public transport pass if possible), or 25p per mile by car. Your client should therefore request Flexible Support Fund payments via their UC journal and we suggest drawing specific attention to the DWP’s guidance (below). If their request is refused, please then contact [email protected]
DWP operational guidance ‘Flexible Support Fund’ (V14)
Mandatory awards for travel
An award for travel expenses must be made when a claimant:
attends additional appointments other than the fortnightly Work Search Reviews when they are allocated to the Intensive Work Search regime, this includes:
alternate weekly Work Search Review during the first 13 weeks of being allocated into the Intensive Work Search regime
[...]
Note: where public transport or is not used (for example due to disability or because none is available), the amount of Flexible Support Fund payment is 25p per mile for 'private transport'
How much to award
If it is not possible for claimants to use local or other concessionary public transport passes, the award must be based on the cost of public transport by the most reasonable and economical route. If using private transport, the award is 25 pence per mile by the most direct route.
Paying travel expenses
DWP guidance sets out the processes to follow when making a payment of FSF for the award of travel expenses.
DWP guidance: ‘09 Payment of travel expenses’ reiterates the amount of the payment:
How much to award
7. Wherever possible Jobcentre Plus Travel Discount Card and other concessionary public transport passes available to claimants, such as Railcard (link is external) and concessionary bus travel (link is external) should be used to minimize costs.
8. If such a facility is not available, the award, whether obligatory or discretionary, must be based on the cost of public transport by the most reasonable / economical route or 25 pence per mile by the most direct route if using private transport.
Housing benefit
Pension credit
Personal independence payment
MH v SSWP LEAP exercise
Terminal illness
Health assessment
Residence conditions
Delay in decision making
Refusal to accept or process claims
If your client has experienced ‘gatekeeping’ via the telephone, request a form via post ASAP as well as sending a pre-action letter (or getting in touch with CPAG). The DWP website states:
Claim by post
You can get a form to send information by post (although this can delay the decision on your claim). Write a letter to ask for the form.
Personal Independence Payment New Claims
Post Handling Site B
Wolverhampton
WV99 1AH
DWP say in response to CPAG correspondence on this issue:
"PIP policy colleagues have made enquiries with the DWP Work and Health Services Group who have looked at the concerns you identified with compliance with the guidance where individuals do not have a NiNO. I understand that changes have been made to ensure compliance, including identifying any cases in addition to those mentioned in your email of 24 March 2021.
I also understand that the inconsistency on gov.uk will be addressed* and our clients have offered to review the cases you mention where guidance appears not to have been followed or other cases which may help identify any additional training for call handlers.
If you would like to take up this offer, calls that have no NiNO are difficult to find because they are not linked to a specific reference, so it would be helpful if you can provide the following details:
• Date and time the call was made
• The number the call was made from
• Was the call made to the New claim or Enquiry line"
CPAG are keen to ensure compliance with DWP guidance and to resolve individual cases for clients. Please let us know (by emailing [email protected]) if you are contacted by anyone who has, when they have tried to claim PIP, been told they must have a NINo before they can claim. If possible, please include the details requested above. If these details are not held, CPAG are still happy to raise cases with DWP using other identifying details (name, date of birth etc).
* NB the website had not been amended as at 18/01/24: www.gov.uk/pip/how-to-claim
What should happen procedurally when a claimant who does not have a NiNo tries to claim PIP?
- Claimant with no NINo calls to make PIP claim
- Paper PIP1 form sent to claimant
- Paper PIP1 returned to DWP. DWP create a 'Prospect Person record'
- PIP2 'How your disability affects you' sent to claimant
- PIP2 returned to DWP
- NINo application triggered
- NINo allocated. DWP update from 'Prospect Person' to 'Person' record
The DWP learning guide “PIP17 Paper Claims” (made available in response to a Freedom of Information request), makes clear procedurally what should happen where a claimant makes a claim without a NINo:
"A paper version of the initial claim form (PIP1) will be issued where the claimant or their PAB:
…
does not have a National Insurance Number (NINO)"
The date of claim is then the date that the claimant telephoned to make the claim providing the claim form is retuned within one calendar month:
"Claimants have one calendar month from date of issue to complete and return the paper claim form to the issuing office. If returned in time, the date of claim will be the date that the claimant telephoned the Department to request the form or the date a letter requesting the form was received."
DWP staff guide “PIP New Claim telephony data gather” (also provided in response to the FOI) confirms that a NINo is not required to issue a paper form.
"There is a requirement for minimum data to issue a paper claim form:
- Name, address and either date of birth or NINO of claimant"
The ‘PIP17 Paper Claims’ and ‘PIP New Claim telephony data gather’ guides for DWP staff are clear that where a claimant does not have a NINo, procedurally a paper claim form should be sent out to the claimant on provision of the claimant’s name, address and date of birth. Provided this is returned within one month, the claim will start from the date of the telephone call.
The DWP guidance “Missing NINO” (also provided in response to the FOI request) states that following completion of paper PIP1 and PIP2 forms, where no NINo is held by the claimant, DWP will trigger a NINo application on the claimant’s behalf by completion of the DCI1 form:
"If a PIP award is appropriate, the CM creates a manual task on PIPCS for the NINO allocation specialist team to take the appropriate action to establish the claimant’s NINO. On receipt of such a task, the Specialist user will complete specialist trace action and if appropriate make further enquiries with the claimant to identify the NINO. If the NINO has still not been established following these enquiries, the Specialist user will complete form DCI1 and refer it to the NINO Centre (NC)… In all cases where a NINO is allocated, the Specialist user will change the Prospect Person record to a Person record in PIPCS and update the Communication Record and create a task to the CM to input the decision."
Pension credit
Claims
Sure Start maternity grant
JR140 Refusal of Sure Start Maternity Grant to resettled Afghan refugee because baby is not claimant's first child (last updated Dec 2022) Letter removed as on 06/02/23 DWP correspondence to CPAG stated:
- Ministers have given approval to change Sure Start Maternity Grant (SSMG) guidance, to apply an exemption to people with a pre-flight child / children, fleeing Afghanistan and Ukraine as a consequence of the Taliban takeover and the Russian invasion.
- An exercise to review qualifying cases / claims previously disallowed under the SSMG ‘first child only’ policy will commence with immediate effect, and as long as all the other eligibility criteria is satisfied, payments will be issued over the coming weeks.
- A communication has been issued to DWP staff informing them of the exemption for any new SSMG applications received.
- The Social Fund Maternity and Funeral Expenses (General) Regulations 2005, GOV.UK website and SF100 claim form will be amended in due course.
If anyone has any difficulty getting previously refusals changed, or sees newly issued refusals wrongly issued then please do let CPAG know via the Early Warning System or to [email protected].
Additionally, if you have a client who is refused a SSMG due to having previous children but does not have baby items due to fleeing domestic abuse, please get in touch, [email protected].
Tax credits
Claim closure as a result of a stop notice from DWP when UC claimed fraudulently
Note that there is a right of appeal against the decision to terminate tax credits on receipt of a s.18 final award notice and as judicial review is a ‘remedy of last resort’ where there is a right of appeal, this must be used unless that right of appeal can be said not to be ‘effective’ (for example if your client is homeless and/or destitute and the legacy benefit was their only income).
Some success has been reported by advisers appealing termination of legacy benefits at the First-tier Tribunal where claimants have made defective claims for UC. Please feel free to use the arguments in the template at
'Fraud - UC claimed fraudulently by a 3rd party' to support any mandatory reconsideration request or appeal.
Disabled worker element
Payments
Refusal to accept a late mandatory reconsideration request
JR11 HMRC refusal to accept MR request made after 30 days but within 13 months. This letter has been removed as in CTC/886/2021 the Upper Tribunal confirmed there is a right of appeal against a decision where an MR has been requested and HMRC have refused to carry out an MR because it is 'out of time' but was made within 13 months. The appropriate action is now to appeal.
Recovery of tax credit overpayment
Refugee retrospective child tax credit claim
JR57 Refusal to accept retrospective tax credit claim following grant of refugee status (this letter has been removed following successful litigation). Please visit our test cases page for HOW TO PROTECT YOUR CLIENT'S POSITION
Support from CPAG
For support using the template letters above and to have your letter reviewed before you send it please contact [email protected].
Sending the letters
Save the pre-action letter as a PDF and send it with your client's signed authority by email to the relevant email address:
DWP: The address for pre-action correspondence to the DWP has changed. Please seek advice from [email protected] before sending any of the templates to DWP. Do not send by email. The templates will be updated in due course.
HMRC: [email protected]
Local authority: FAO legal department
Tell us the response to your pre-action letter
Please let us know how DWP, HMRC or the relevant local authority respond as this will inform future templates. Email us at [email protected]
The DWP might respond to your letter along these lines: "Judicial review is inappropriate. However the decision has been changed on mandatory reconsideration”. This is a success for your client.
If you have not received a response within 14 days (or the lesser time requested due to your client's circumstances) contact CPAG for advice [email protected].
If the matter remains unresolved, we may be able to refer you to a law firm who can issue judicial review proceedings.
Tell us what you think
We report regularly to our funder about whether you have found these template letters useful. Please send us your feedback to help us to continue to fund the project. Email us at [email protected].