Why are the DWP doing retrospective verifications of ID and other matters?
At the beginning of the pandemic, because of the massive increase in claims, the DWP decided not to require every UC claimant to verify their ID, rent, household constitution etc before UC could be awarded: a system they called Trust and Protect.
This affected claims made in March and April 2020. DWP say that the process included informing claimants that further evidence would be requested at a later date.
A “Repair Team” was set up in spring 2021; they have been contacting UC claimants who claimed under Trust and Protect requesting that they verify their ID and provide any missing evidence.
The DWP have stated in response to a Freedom of Information Request about the “Repair” process: “if the verification evidence does not support the application it will be reviewed and revised to the correct entitlement and, where appropriate, an overpayment calculated and put into recovery”.
What’s the problem?
Claimants who now failed to provide sufficient evidence to confirm their award, or whom the DWP have been unable to contact, are having their UC awards closed retrospectively – back to the date of claim – causing huge overpayments. Under UC, all overpayments are recoverable regardless of the cause. There are reports of this happening even where the DWP has not yet asked the claimants for evidence, and even where the claimant has uploaded the required evidence onto their UC account.
Joan claimed UC in April 2020. She is 62, has mild learning difficulties and is unable to use her online account without the help of her daughter who lives nearby. When she claimed she didn’t need to provide any evidence. Unfortunately when Joan was asked to upload ID in March 2021 her daughter had Covid and was self isolating. Within a few weeks DWP cancelled the award back to the start and told her she owed over £8,000 in overpaid UC.
Dai and Gwynneth who have three small children claimed UC when Dai was made made redundant in April 2020.
Fortunately in January 2021 he was able to secure a new job which paid enough to lift them off UC and his award ended.
However although his online account would have remained open for 6 months Dai had no reason to check his journal, so was not alerted to the need to verify his ID (and even if he'd had a text or email he might not thought it was relevant as he was no longer on UC). DWP then wrote to tell him has been overpaid more than £13,000 as he didn’t provide the evidence to support his claim. This is currently being taken as an attachment of earnings order from his wages.
What can a claimant in this situation do?
The claimant needs to:
- Make a new claim if the UC award has been terminated (if still eligible).
- Request a Mandatory Reconsideration against the decision to terminate their UC award and that they have been overpaid.
- Contact the DWP Debt Management Team and request that the recovery of the overpayment is suspended whilst any MR/appeal is being decided.
- If the MR fails, appeal.
- If there has been maladministration that has caused them hardship they can make a formal complaint.
NOTE: This article is concentrating on cases where the claimant has failed to provide evidence regarding their ID or evidence related to one of the key claiming criteria, so failing to provide that would allow the DWP to terminate the award. Where the evidence outstanding is related to a particular Element included in the award such as rent, then the DWP should reassess their entitlement and remove that Element rather than terminating the award.
Request a Mandatory Reconsideration
The claimant can use standard letter UC OP6 to request a Mandatory Reconsideration of the decision to terminate the award retrospectively and to create an overpayment. Note that this will not succeed unless they have now provided the requested evidence, or been able to satisfy the DWP that such evidence does not exist or it is impossible for them to obtain it.
Note that when a UC award is terminated the claimant does not have access to their journal, so they cannot write the MR request on it, or produce records of conversations or actions. If they cannot access the journal to lodge the MR request it would be best to both phone and send a letter, keeping a copy.
If they need their records to show they have already provided evidence, or to show they were not notified of the decision, for example, they can submit a Subject Access Request - click here. The information should be provided within a month. Note that if it’s a joint claim, the SAR should be for both people, otherwise GDPR means some of the records may be missing.
What procedure should the DWP have followed?
Under the UC Regulations, the DWP should have:
1. Requested the required missing evidence.
2. Allowed the claimant 14 days from the date of the request to provide the requested evidence.
2A. If the claimant requested it, allow a longer period if reasonable.
3. If the evidence was not provided within that time limit the DWP should have suspended the award and notified the claimant of that decision.
4. Then allowed one month from the date of the decision to suspend before terminating the award if the evidence they required was not provided.
5. Applied the principle of 'adverse inference' when deciding the date the terminating decision applies.
6. Notified the claimant of their decision and their appeal rights.
What are the grounds for the MR request?
Where a claimant's UC award has been termiated it could well be that the DWP has failed to follow this process in more than one area for example not giving the claimant a month between suspension and termination.
Any MR should state all the areas where the DWP has failed - but the key is ensuring the DWP accept that they can now revise their decision to terminate the award now that the claimant has provided the missing evidence.
In order to close a claim retrospectively, the DWP must have revised their original decision to accept the claim and make payments. The UC Regulations allow the DWP to do this by drawing an 'adverse inference' about the facts – ie infer, from the lack of evidence, that there was something adverse going on which meant the claimant wasn’t entitled to UC.
For instance, if it was evidence of ID that was missing, then the DWP could make an 'adverse inference' from that fact that the claimant has not provided evidence of their ID that they are not the person stated on the claim.
A4272 of the Advice for Decision Making states: “Sometimes a question has to be decided by making an adverse assumption about a relevant fact because the DM has been unable to obtain sufficient evidence.”
It then goes on to explain that the assumption based on lack of evidence can be overturned if evidence shows it was a wrong assumption.
“If evidence is then provided which shows the DM’s assumption is wrong the original decision can be superseded because of ignorance of a material fact. If the evidence is provided within the dispute period, revision would be appropriate”.
So if the claimant produces the missing evidence, showing that the decision to award UC was incorrect, the DWP can revise that original decision because it was based on a factual inaccuracy. CH/3736/2006. NOTE: The dispute period is normally a calendar month but this can be extended by a further 12 months.
Suspension and termination?
What if the DWP say they didn’t use these regulations, but instead used their powers to suspend and the terminate when evidence isn’t provided by the claimant?
If a claimant fails to provide evidence on time, the DWP can suspend payments of UC and then, if certain conditions are met, terminate the award. BUT this can only affect the UC award going forward from date of suspension: the DWP cannot retrospectively “close an award” back to the date of claim purely on the grounds that evidence that was requested at a later date has not been provided.
Regulation 45 (6) of the UC, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013 allows the DWP to suspend payments while giving time for the claimant to provide the requested evidence. Then if the information isn’t provided, they can terminate the award under Regulation 47 from the date of the suspension prospectively – ie going forward – and there will be no ongoing award. But they cannot terminate retrospectively due to the information not being provided.
What if the DWP do not revise the decision?
If the DWP refuses to revise then the claimant should appeal to HMCTS. The Tribunal is likely to require the DWP to establish the basis for their decision to terminate.
What if the DWP have not followed procedures correctly?
If the claimant has suffered hardship as a result of maladministration eg termination of the award too early, they can make a complaint to the DWP - click here. They might receive some compensation.