Arrears of UC

I would value some opinions on this case as I don’t want to give the cl any false hopes.

Cl made a claim for UC in late 2018 . This claim was refused under notional capital rules on 30/01/19.

Cl appealed

Between the date of decision and the Tribunal the cl had several letters explaining the reduction of notional capital rules and inviting him to re apply in March/April 2019 when his notional and actual capital would have been deemed to be low enough to allow a claim. Cl took this to mean that he was forbidden to make a claim.

Cl did not make any claims at those times and tells me that his original claim was , at some point, cancelled.

Appeal was heard on 13/12/19. Cl lost appeal as the Judge ruled that he had actual capital in excess of £16,000.00 at the time in question. Cl describes being questioned by the Judge in relation to the money he had spent and the decision notice clearly states that the cl was not to be treated as having any notional capital, the actual capital was the reason that the appeal failed.

Cl did not make a new claim for UC until October 2020. He asked for arrears but this was refused, he was advised to ask for an MR but this was cancelled as it ‘was not necessary’ but he has had a letter from UC dated 01/04/21 inviting him to submit an appeal so it is clear that an MR has in fact taken place.

The cl wants to pursue an appeal but I am struggling to find that he has any grounds to do so, he lost his appeal and did not make any claim until the end of 2020 in which he asked for arrears. In my view Reg 26 of the UC claims and payments regs prevents any arrears being paid and the only way I can see that he could have had any arrears was if he had made another claim as soon as his actual capital fell below the limit, which would have been between the first claim and the actual hearing and asked for it to be stayed until the appeal was heard. The cl (rightly in my view) feels that this is placing an unfair burden on him as it would need him to have more than normal legal knowledge and in any case he took the DWP letters to mean that he was forbidden to claim again.

Any thoughts or experiences gratefully received

As you identify, there is no sensible basis for an appeal. The first claim was refused (correctly, as the Tribunal found) and the second claim resulted in an award of benefit. The claims could only be decided on the basis of the facts which existed between the actual or deemed date of claim and the date of decision. There is no legal provision at all which would assist your client.

I am not sure how the blame for this situation can be laid on DWP (so as to found a complaint or something). As you say, they made their decision on the basis of notional capital and appear to have sought to offer advice as to how diminishing notional capital would affect future entitlement and when he would expected to qualify. The judge has then made a decision more adverse to him on the basis that he actually has the money which means diminishing notional capital goes out the window. I have no idea how DWP could have anticipated this or given him appropriate advice. In any event he appears to have been advised to “re apply in March/April 2019” and if he had followed that advice UC would have been put into payment (albeit on a legal basis which would turn out to be incorrect).