Advice to claim UC
41. Mr N says he called the ESA helpline on 10 August 2018 and was told that due to his address change, his ESA claim would end and he would need to claim UC.
42. DWP internal guidance: Updating change of address details, 24 May 2018, says: • natural migration occurs when existing JSA, ESA, HB and Tax credits claimants have to claim UC as a result of a change in their circumstances • natural migration to UC must be considered when a change of address is notified
43. DWP internal guidance: ESA telephony: Change of address: Same Local Authority Area, 10 July 2018 says a claim to UC will not be appropriate if the ESA claimant has a permanent change of address within the same local authority area and the claimant has an existing HB claim. It says that that claimant’s situation is treated as a change of circumstances rather than natural migration when they: • are claiming ESA • are claiming HB • lives in a UC full service area and moves to an address within the same local authority area • has no other change of circumstances that will trigger natural migration.
44. In the same guidance the section entitled ‘Change of address notified’ says when a claimant informs the ESA telephony that they have change of address, the DWP agent must check the post code and any existing HB and ESA claim to check if the above applies. If this is the case the agent must treat the case a change of circumstances and not close the ESA claim.
45. We would expect the DWP to communicate effectively and aim to ensure that customers are clear about their entitlements in line with our principles of good administration (our Principles) and its Customer Charter which says it will follow processes correctly and provide customers with the correct decision, information or payment.
46. We have considered the available evidence here to decide if we can see any indication of failings in how DWP responded to Mr N’s notification of a change of address.
47. From Mr N’s account it appears that the DWP adviser failed to make the further enquiries which would have established that his case should be treated as a change of circumstances rather than natural migration in line with the guidance above. Consequently it appears they then provided incorrect advice which is not line with our principles or the DWP Customer Charter.
48. We have also taken into account that there is no recording or other record of this telephone call on 10 August 2018 to support Mr N’s account.
49. Having reviewed all of the above we have decided that on a balance of probabilities it is more likely than not that the ESA helpline told Mr N that he had to claim UC. This is because we have heard from his own account that he wanted to avoid claiming UC for as long as possible because he understood that he would be worse off on this benefit.
50. This is supported by the fact that during his four year ESA claim he had not chosen to claim UC voluntarily even though he had the option to do so at least since the full service roll out of UC in 2016. As such we have seen no other reason for his decision to claim UC in August 2018 unless he believed that he did not have a choice. We see from his account that he was very distressed by what happened.
51. Given the above we consider that there is an indication of failing on the part of the DWP in respect to the advice it provided to Mr N on 10 August 2018.
Mandatory reconsideration
52. Mr N requested an MR of his initial UC decision on several occasions because he was concerned that the payment was significantly less than he had previously received for the same period on ESA.
53. We see that UC repeatedly refused to raise an MR saying there were no grounds to do so. Rather a manager provided an explanation in response to his first request on 14 September 2018 and he subsequently received the same explanation on his UC journal on 16 November 2018.
54. DWP subsequently responded to Mr N’s concerns in response to his complaint about the matter and essentially repeated its earlier explanation.
55. We have looked at the relevant guidance to see how DWP should have responded to Mr N’s requests for an MR.
56. The DWP Advice for Decision Making (ADM) which provides guidance relating to the appeal process was not issued until July 2019. However the DWP have provided the earlier internal guidance: Mandatory Reconsideration, July 2018 which is relevant to the events of Mr N’s complaint.
57. This guidance says that all decisions which can be either superseded (replaced by a new decision which takes effect from a later date) or appealed can be subject to an MR. It explains that a claimant does not have to supply evidence or give reasons why they think the decision is wrong to request a decision be reconsidered, The original decision can be revised on any ground.
58. The guidance also explains that a decision will refer to the right to request an MR in addition to the option of seeking an explanation of the decision and requesting a written statement of reasons.
59. We asked the DWP why it had refused to raise an MR and it referred us to its response in Mr N’s journal dated 16 November 2018.
60. From the above it appears that DWP have chosen to provide an explanation of the decision. The guidance says that this is something which the claimant can request. However in this case it was quite clear that Mr N was requesting an MR and not an explanation.
61. Moreover the explanation provided was unlikely to be sufficient since it told him that that his change of address had triggered his UC claim and we know he did not agree that this should have happened. DWP continued to fail to raise an MR despite his repeated requests and this does not appear to be in line with the guidance which tells us that it is obliged to do so regardless of the reason for the request.
62. As such we consider that there is an indication of failing here.
Impact of identified indications of failings
63. As set out above the indications of failings we have found are that the DWP: • wrongly advised Mr N to claim UC on 10 August 2018 • failed to respond to Mr N’s request for an MR
64. We have gone to consider what would have happened differently if DWP had not told him to claim UC on 10 August.
End date of ESA claim
65. We can see that Mr N would have continued to claim ESA for as long as possible. From the available evidence we can say that if DWP had not incorrectly advised Mr N to claim UC on 10 August 2018, he would have continued to receive ESA until the date his wife moved into his address on 22 October 2018.
66.
67. At this point he would have had to claim UC. We have explained this is because, at this time, a change of circumstances, which would previously require a claimant to change to a different legacy benefit claim, triggered a UC claim under the natural migration rules. In this case the change of circumstances was the move from living on his own to living as a couple with his wife.
68. We have referred above to the relevant legislation. Article 4 of the Welfare Reform Act 2012 (Commencement No 9 and Transitional and Transitory Provisions and Commencement No 8 and Savings and Transitional Provisions (Amendment) Order 2013 NO. 983 and similar provisions in individual commencement orders introducing full service areas. We have explained that this legislation prevented someone making a new legacy benefit claim.
69. We have looked at Mr N’s evidence in respect to the above. He has strongly disputed that he would have either got married or allowed a partner to move in with him if he had still been in receipt of ESA. He said that this is because he knew that this change of circumstances would trigger migration to UC. He wanted to avoid this happening at all costs because he understood that he would receive less benefit on UC than on ESA. He explains that since he was already on UC, he knew that getting married would not negatively affect his income. He therefore wants us to extend the date of impact beyond the date of his marriage as set out in the summary above.
70. We have no reason to doubt that Mr N is genuine in what he has told us regarding his anxieties about migration to UC. We have considered carefully what he has said.
71. Having reviewed the available evidence we have decided there is nothing to indicate that we should extend the impact beyond the date Mr N’s wife moved into his address. This is because we can only look at injustice that has resulted from maladministration. We have not seen sufficient evidence to show that there is a clear link between the advice given to him to claim UC and his decision to live with his wife at the same address from 22 October 2018.
72. While we agree Mr N may have been thinking about financial impacts of his relationship, there were also personal elements to the decision which are difficult to quantify in terms of how they affected his decision-making. Mr N was clearly in a committed relationship at the time and he went on to marry his partner in November 2018. In the absence of further evidence, we cannot say on the balance of probability that Mr N would not have moved in or married his partner but for DWP’s incorrect advice.
73. Mr N has also asked us to consider the following evidence to support his argument that we should not restrict our consideration of impact to before his wife moved into his address.
74. He says that the DWP telephoned him around April or May 2019 and told him it would shortly be paying him transitional protection payment with his UC. His understanding is that the regulations prevented him from being entitled to this payment because he had changed his UC claim from the single to the couple rate of UC.
75. He says that DWP told him that it had decided to pay it to him nonetheless because it recognised that he would have remained on ESA if it had not misadvised him. Mr N says this is evidence that DWP agree it made a mistake when it told him to claim UC. He has said we should ask DWP why it paid him transitional protection payments.
76. We have considered what Mr N has told us – that he suggested the payments for transitional protection might be wrong. We have advised him to take this matter up with DWP separately if he wishes to do so. This is because he has said he is not complaining about the transitional protection payment. Rather he believes that it supports his complaint about misdirection.
77. However his account of what he was told and the conclusions that he has drawn from this do not tell us anything more than we have already established from our investigation. We have already explained that we agree with him that his was likely misdirected and we have said we saw indications of failings in regard to the DWP’s advice to claim UC. Any admission on its part does not add to our findings.
78. Nor does any admission affect our findings regarding the duration of impact on Mr N. We recognise that Mr N does not agree with our rationale for limiting our consideration of the impact on him till 22 October 2018 for the reasons given above. The account he has provided of this telephone call does not change our decision about this.
MR request
79. We can also say that if DWP had not given Mr N incorrect advice to claim UC, he would never have needed to request an MR on the grounds that this had happened.
80. We have gone to look at the impact of what happened, as a result of the two identified failings, on Mr N.
Financial costs 81. As a result of claiming UC on 13 August 2018 instead of 22 October 2018 (when he moved in with his wife), Mr N incurred a financial loss for this ten week period due to the discrepancies between the entitlement rules for UC and ESA. This amounted to approximately £432.62.
82. We asked Mr N if the reduced monthly income during this period specifically had resulted in any longer term financial liabilities that would not have occurred if he had remained on ESA. For example he may have taken out a loan to manage the shortfall in his income and continued repayments after 22 October 2018. He told us he does not take out loans and did not identify any other ongoing financial liability.
83. Having considered the above evidence we see that the financial costs solely related to the loss of benefit entitlement plus any erosion of this amount since the relevant period.
Financial and emotional distress 84. We asked Mr N to explain how the reduced monthly income affected him during the period 13 August to 22 October 2018
85. He said when he received his first payment, he felt ‘gutted and asked himself how he was going to cope financially’. He describes himself as being ‘besides himself with worry’ about how he was going to manage. He felt that ‘big brother was in control’. He felt that ‘no one cared and as though he did not matter and was just a burden’.
86. He said that the house he had moved into was in a very poor state of repair. He said the ceiling was falling down and it was difficult to keep warm. He also says that his osteoarthritis is really painful if he sits in the cold too long.
87. He had previously had a prepayment meter and initially at his new address there was a standard meter. He says he prefers a prepayment meter because he is always very wary of getting into debt and can more easily control how much electricity he uses.
88. He says the outstanding balance on his electric bill at his new address was £600 by Christmas 2018. In the new year a charity paid this off for him, so he no longer had that debt. However during the first weeks of his UC claim, the significant reduction in his monthly income resulted in increased worry and stress over his outstanding and increasing electricity bill.
89. He also says during this time he only had money for very basic expenses and struggled to buy food and skipped meals or ate low quality food.
90. He says that after 22 October 2018, his TV and fridge both broke down and he only managed to replace them because he received funding from charities etc. He says nothing broke down in the first few weeks of his UC claim but he was worried about it happening because he knew that the reduction in income would make it more difficult to pay for replacements. He spent a lot of time in the house watching TV and would have found it very difficult if this had broken down.
91. He says at this time he had a very old car but could not afford to pay for any petrol. This meant particularly that he could not go and visit his son which he had previously regularly done.
92. He says the reduction in his monthly income ‘messed him up’. He started to self-harm again as a coping strategy to manage his anxiety about his financial situation. He said he had previously had a clear run of not doing so but he started up again when he claimed UC. He says he mostly cut his arms and regularly overdosed on his medication. He explains that this was not with the intention of causing himself harm but to ‘knock himself out a bit’.
93. He tells us he had also attended a mental health community centre regularly since 2004 but due to his deteriorating mental health, he found it difficult to motivate himself and socialise with other people. He consequently quickly become very isolated and spent a lot of time just sitting at home on his own.
94. He refers to support he previously received from a community psychiatric nurse some years ago. They had supported and encouraged him to go out daily either to the shop or to the community centre. He says they had showed him that it was very important to keep practicing going out to manage his anxiety and promote good mental health and explained that if he allowed himself to become isolated, his mental health would deteriorate. He believes that as a result of claiming UC, this is exactly what happened.
DWP’s failure to raise MR 95. We have also asked Mr N to describe how the DWP’s continual refusal to raise an MR impacted on him. He says it caused him a lot of frustration and upset. He says although he subsequently complained to his MP about the incorrect advice in November 2018, he was initially under the impression that an MR was the best way to raise his concerns. He says he was angry that DWP would not take responsibility for giving him the wrong advice and when it kept ignoring his requests for an MR, he felt that nobody was listening to him
96. We see that he made four requests for an MR from 17 September to 25 October 2018 and subsequently complained on 13 December 2018 to DWP. The DWP’s final response dated 16 January 2019 still refused to raise an MR on the same grounds.
97. As such we see the frustration and upset he experienced continued for four months until the DWP complaint response in January 2019. We see the response still did not acknowledge any failings but we can say that DWP had listened to his concern and provided a final response.
Start date of transitional protection payments 98. We have explained above that the purpose of these payments was to go some way to addressing the financial discrepancy for some claimants between their entitlement to UC and their previous legacy benefit. Mr N was one of these claimants. This is a separate matter to the misdirection.
99. We are not investigating any issues relating to the introduction of transitional protection payments and we cannot hold DWP responsible for the delay in enabling the relevant legislation. Nonetheless we see that DWP’s misdirection about UC compounded the financial pressure on Mr N during the first ten weeks of his UC claim.
Remedy for impact
100. We have then considered appropriate remedies for the impact we have identified above including any actions already taken by the DWP.
Financial costs
101. We are pleased to see that DWP have made a payment equivalent to the discrepancy between Mr N’s UC and ESA payment from the beginning of his claim on 13 August 2018 until 13 November 2018. It has also paid an additional payment of interest(?) to offset erosion of monetary value between this period and the time of payment in December 2023.
102. We have explained above in the background information why ICE ended the payment period on 13 November 2018. We note that DWP have actually paid for a longer period than was actually required given we have established that Mr N would have needed to claim UC on 22 October 2018 (when he moved in with his wife) even if he had not received incorrect advice from DWP.
103. Mr N has not disclosed any longer term financial costs resulting from his reduced income during the relevant period.
104. As such we therefore consider any financial loss has been resolved fully by the payment made by DWP.
Emotional costs
Financial distress 105. We have then considered an appropriate remedy to put right the emotional impact Mr N has described.
106. We acknowledge that benefit payments are only intended to provide for essential living expenses and therefore we accept that any shortfall would be difficult to manage and likely to cause financial hardship. In this case we recognise that the reduction in this case of approximately £432 over ten weeks was a very significant shortfall. We have also considered that the reduction in income happened suddenly and without warning so he could not prepare in advance
107. We have set out above Mr N’s account of the impact on him during this period. He has explained how the financial hardship caused his mental health to deteriorate during the relevant period to the point that he became very isolated and started to self-harm again.
108. He says his worry and upset principally centred on the sudden shortfall in his income and mentions specifically his electricity bill at this time. He tells us he could not afford the most basic daily essential needs such as food. He also explains how he experienced further upset and frustration due to the delay in complaint handling and the DWP’s failure to respond to his request for an MR.
Resolution
109. DWP have offered a consolatory payment of £100 to put right the upset and distress caused to Mr N. After further enquiries and discussion with DWP, it has agreed to increase the consolatory payment by a further £350 making a total payment of £450.
110. In making this decision it has applied DWP internal guidance: What to pay – special payment categories, 2018. This guidance explains the actions DWP can take to put right maladministration. These actions include a special payment. There are different categories of special payment including consolatory payments.
111. Consolatory payments are considered where the customer has suffered injustice or hardship arising from maladministration which has affected their wellbeing. The guidance suggests three different possible impacts on the customer. These are: • gross inconvenience which goes beyond general trouble or annoyance but is short of a significant impact on the customer’s health • gross embarrassment, humiliation or unnecessary personal intrusion • a significant impact on a customer’s physical or mental health causing ‘severe distress’
112. The ‘gross inconvenience’ category ‘goes beyond general trouble or annoyance but is short of a significant impact on the customer’s health’. It includes where there has been: • numerous mistakes and errors • unwarranted and/or repetitive requests for the same information • loss of personal information • excessive use of their time • mishandling of complaint – botheration
113. In respect to the third category of impact, the guidance goes onto says that severe distress should be distinguished from general stress which would be better categorised as ‘gross inconvenience’. ‘Severe distress’ indicates a stronger impact which may lead to a higher consolatory payment than gross inconvenience.
114. The guidance goes on to say that the DM should consider: • whether there is objective evidence which suggests that other factors have also contributed to the customer’s deterioration in health.
• whether the customer has a pre-existing health condition and compare the state of their health before and immediately after the maladministration.
• the duration of any impact • any delay in making an award
115. The guidance says that these types of payments usually range between £50 and £500. Bigger payments may be made in appropriate circumstances but approval is required.
116. DWP’s view is that the ‘gross convenience’ category applies to Mr N’s case. It explains that it does not consider the ‘severe distress’ category to be appropriate. This is because although it accepts that Mr N had serious chronic mental health issues prior to the events of the complaint, it has not seen any independent evidence of a deterioration in his mental health as a result of the maladministration.
117. We have considered the above DWP rationale and have decided to accept the offer of a total payment of £450.
118. This is because we consider that DWP has made a reasonable decision in line with its guidance, based on the evidence available to it. We have explained our thinking below.
119. We can see Mr N’s own account of the deterioration in his mental health strongly suggests he meets the severe distress category. We cannot criticise DWP’s decision to disregard this evidence since it correctly pointed out that Mr N had ongoing mental health problems and we have not been able to provide any independent medical evidence to support his account that it got significantly worse during the time of the events. As such its finding, that Mr N meets the criteria for the gross inconvenience category of impact, is reasonable.
120. This is also because this category of impact covers DWP’s incorrect advice in regard to the UC claim, the failure to raise an MR and the mishandling of his complaint.
121. DWP have also looked at the delay in reimbursing the LOSE. It acknowledged it did not pay the LOSE until over five years after the misdirection. However It also notes that Mr N received back more than half of the shortfall due to him when DWP paid the backdated transitional protection payment just a year later in September,
122. While we agree that the transitional protection payment reduced the shortfall due to him, we have also explained above that these payments were made to all eligible claimants. As such they do not change the fact that DWP significantly delayed putting things right financially.
123. Having said this, we know that the full reimbursement was for approximately £468 plus erosion costs. Although we have taken into account that relative to Mr N’s income, it was not a trivial amount, we agree it was nonetheless not a substantial sum and this is reflected in the consolatory payment.
124. The guidance says that most consolatory payment range from £50 to £500. As such, given that we have accepted DWP’s rationale for selecting the gross inconvenience category, we consider that the total payment of £450 is in line with the guidance.
125. Mr N has explained to us how difficult and distressing the change to UC was for him. We know he still feels frustrated and upset by the incorrect advice given to him by DWP. We also recognise his efforts to pursue his complaint in order to get answers to his questions. We hope our consideration of his complaint provides him with some clarification about happened and reassurance that DWP have taken appropriate steps to recognise the impact on him.