The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013

Regulation 35

SCHEDULE 1 EFFECTIVE DATES FOR SUPERSEDING DECISIONS MADE ON THE GROUND OF A CHANGE OF CIRCUMSTANCES

PART 1 EMPLOYMENT AND SUPPORT ALLOWANCE AND JOBSEEKER’S ALLOWANCE

1.  Subject to the following provisions of this Part and to Part 4, in the case of an employment and support allowance or a jobseeker’s allowance, a superseding decision made on the ground of a change of circumstances takes effect from the first day of the benefit week in which the relevant change of circumstances occurs or is expected to occur.

2.  Paragraph 1 does not apply where—

(a) the superseding decision is not advantageous to the claimant; and

(b) there has been an employment and support allowance decision where the Secretary of State is satisfied that, in relation to a limited capability for work determination, the claimant—

(i) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(ii) could not reasonably have been expected to know that the change of circumstances should have been notified.

3.  Where a relevant change of circumstances results, or is expected to result, in a reduced award and the Secretary of State is of the opinion that it is impracticable for a superseding decision to take effect from the day set out in paragraph 1, that superseding decision takes effect—

(a) where the relevant change has occurred, from the first day of the benefit week following that in which that superseding decision is made; or

(b) where the relevant change is expected to occur, from the first day of the benefit week following that in which that change of circumstances is expected to occur.

4.  Where entitlement ends, or is expected to end, as the result of a change of circumstances, the superseding decision takes effect from the day on which the relevant change of circumstances occurs or is expected to occur.

5.  In the case of an employment and support allowance where a person who is subject to—

(a) section 45A or 47 of the Mental Health Act 1983 (power of higher courts to direct hospital admission; removal to hospital of persons serving sentences of imprisonment etc.)(1);

(b) section 59A (hospital direction) of the Criminal Procedure (Scotland) Act 1995(2); or

(c) section 136 (transfer of prisoners for treatment for mental disorder) of the Mental Health (Care and Treatment) (Scotland) Act 2003(3),

ceases, or is expected to cease, to be detained in a hospital (as defined in the Act, or the Act of the Scottish Parliament, to which the person is subject) for a period of less than a week, a superseding decision related to that person’s departure from, or return to, hospital takes effect from the day on which that change of circumstances occurs or is expected to occur.

6.  Where the superseding decision is advantageous to the claimant and the change of circumstances was notified to an appropriate office more than one month after the change occurred or after the expiry of such longer period as may be allowed under regulation 36 (effective dates for superseding decisions where changes notified late), the superseding decision takes effect from the beginning of the benefit week in which the notification was given.

7.  In the case of an employment and support allowance decision where the Secretary of State is satisfied that, in relation a limited capability for work determination, the claimant—

(a) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(b) could reasonably have been expected to know that the change of circumstances should have been notified,

the superseding decision takes effect in accordance with paragraph 8.

8.  The superseding decision takes effect—

(a) from the date on which the claimant ought to have notified the change of circumstances; or

(b) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified.

9.  In the case of a claimant who makes an application for a supersession which contains an express statement that they are terminally ill, the superseding decision takes effect from the date on which the claimant became terminally ill.

10.  Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the beginning of the benefit week in which the Secretary of State commenced action with a view to supersession.

11.  In this Part—

“employment and support allowance decision” means a decision to award an employment and support allowance embodied in or necessary to which is a determination that the claimant has, or is to be treated as having, limited capability for work;

“week” means a period of 7 days, beginning with midnight between Saturday and Sunday.

PART 2 PERSONAL INDEPENDENCE PAYMENT

12.  Subject to the following provisions of this Part and to Part 4, in the case of personal independence payment, a superseding decision made on the ground of a change of circumstances takes effect on the date on which the relevant change of circumstances occurs or is expected to occur.

13.  Paragraph 12 does not apply where—

(a) the superseding decision is not advantageous to the claimant; and

(b) there has been a personal independence payment decision where the Secretary of State is satisfied that, in relation to such a decision, the claimant—

(i) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(ii) could not reasonably have been expected to know that the change of circumstances should have been notified.

14.  Except in a case where paragraph 15 or 31 applies, where the superseding decision is advantageous to the claimant and the change of circumstances was notified to an appropriate office more than one month after the change occurred or after the expiry of such longer period as may be allowed under regulation 36 (effective dates for superseding decisions where changes notified late), the superseding decision takes effect from the date of notification of the change.

15.  Where—

(a) the change is relevant to entitlement to a particular rate of personal independence payment; and

(b) the claimant notifies an appropriate office of the change no later than one month after the date on which they first satisfied the conditions of entitlement to that rate or within such longer period as may be allowed by regulation 36 (effective dates for superseding decisions where changes notified late),

the superseding decision takes effect from the date on which the claimant first satisfied those conditions.

16.  Where the Secretary of State is satisfied that, in relation to a personal independence payment decision, the claimant—

(a) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(b) could reasonably have been expected to know that the change of circumstances should have been notified,

the superseding decision takes effect in accordance with paragraph 17.

17.  The superseding decision takes effect—

(a) from the date on which the claimant ought to have notified the change of circumstances; or

(b) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the date on which the first change ought to have been notified.

18.  Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the date on which the Secretary of State commenced action with a view to supersession.

19.  In paragraphs 13 and 16, “personal independence payment decision” means a decision to award personal independence payment, embodied in or necessary to which is a determination whether the claimant satisfies any of the requirements in section 78(1) and (2) (daily living component) or section 79(1) and (2) (mobility component) of the 2012 Act.

PART 3 UNIVERSAL CREDIT

20.  Subject to the following paragraphs and to Part 4, in the case of universal credit, a superseding decision made on the ground of a change of circumstances takes effect from the first day of the assessment period in which that change occurred or is expected to occur.

21.  Except in a case to which paragraph 22 or 31 applies, where the superseding decision is advantageous to the claimant and the change of circumstances was notified to an appropriate office after the end of the assessment period in which the change occurred or after the expiry of such longer period as may be allowed under regulation 36 (effective dates for superseding decisions where changes notified late), the superseding decision takes effect from the first day of the assessment period in which the notification was given.

22.  In the case of a person to whom regulation 61 (information for calculating earned income) of the Universal Credit Regulations applies, where—

(a) the relevant change of circumstances is that the person’s employed earnings are reduced; and

(b) the person provides such information for the purposes of calculating those earnings at such times as the Secretary of State may require,

the superseding decision takes effect from the first day of the assessment period in which that change occurred.

23.  In the case of a universal credit decision where the Secretary of State is satisfied that, in relation to a limited capability for work determination, the claimant—

(a) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(b) could reasonably have been expected to know that the change of circumstances should have been notified,

the superseding decision takes effect in accordance with paragraph 24.

24.  The superseding decision takes effect—

(a) from the first day of the assessment period in which the claimant ought to have notified the change of circumstances; or

(b) if more than one change has taken place between the date from which the decision to be superseded took effect and the date of the superseding decision, from the first day of the assessment period in which the first change ought to have been notified.

25.  Where—

(a) the superseding decision is not advantageous to the claimant; and

(b) there has been a universal credit decision where the Secretary of State is satisfied that, in relation to a limited capability for work determination, the claimant—

(i) failed to notify an appropriate office of a change of circumstances which the claimant was required by regulations under the Administration Act to notify; and

(ii) could not reasonably have been expected to know that the change of circumstances should have been notified,

the superseding decision takes effect on the first day of the assessment period in which the Secretary of State makes that decision.

26.  Where, in any assessment period, a claimant—

(a) reaches the qualifying age for state pension credit under the State Pension Credit Act 2002(4); and

(b) has made an advance claim for an award of state pension credit,

a superseding decision made in consequence of the person reaching that age takes effect on the date on which that change of circumstances occurs or is expected to occur.

27.  A superseding decision of the Secretary of State to make or to cease making a hardship payment takes effect in accordance with regulation 117 (period of hardship payments) of the Universal Credit Regulations.

28.  In the case of a claimant who makes an application for a supersession which contains an express statement that they are terminally ill, the superseding decision takes effect from the first day of the assessment period in which the claimant became terminally ill.

29.  Where the superseding decision is advantageous to a claimant and is made on the Secretary of State’s own initiative, it takes effect from the first day of the assessment period in which the Secretary of State commenced action with a view to supersession.

30.  In this Part, “a universal credit decision” means a decision to award universal credit embodied in or necessary to which is a determination that the claimant has or is to be treated as having limited capability for work.

PART 4 COMMON PROVISIONS

31.—(1) This paragraph applies in relation to an award of personal independence payment or universal credit where the change of circumstances is that the claimant or, in the case of universal credit, a member of their family, becomes entitled to another relevant benefit, ceases so to be entitled or the rate of another such benefit alters.

(2) Where this paragraph applies, the superseding decision takes effect from—

(a) where the superseding decision concerns universal credit, the first day of the assessment period in which—

(i) the entitlement to the other benefit arises;

(ii) the entitlement to the other benefit ends; or

(iii) entitlement to a different rate of the other benefit arises;

(b) where the superseding decision concerns personal independence payment, the date on which—

(i) the entitlement to the other benefit arises;

(ii) the entitlement to the other benefit ends; or

(iii) entitlement to a different rate of the other benefit arises.

(3) For the purpose of sub-paragraph (1), where the superseding decision relates to personal independence payment, “relevant benefit” includes any payment made under any of the provisions mentioned in regulation 61(1) (cases where mobility component of personal independence payment not payable) of the Claims and Payments Regulations 2013.

32.  Where the change of circumstances is that there has been a change in the legislation in relation to any benefit, the superseding decision takes effect from the date on which that change in the legislation had effect.

33.  Where the change of circumstances is the expected coming into force of a change in the legislation in relation to any benefit, the superseding decision takes effect from the date on which that change in the legislation takes effect.

Regulation 50(1)

SCHEDULE 2 DECISIONS AGAINST WHICH AN APPEAL LIES

1.  A decision as to whether a person is entitled to a benefit for which no claim is required by virtue of regulation 6, 7 or 9(6) and (7) of the Claims and Payments Regulations 2013.

Regulation 50(2)

SCHEDULE 3 DECISIONS AGAINST WHICH NO APPEAL LIES

Claims and Payments

1.  A decision under any of the following provisions of the Claims and Payments Regulations 2013—

(a) regulation 18 (special provisions where it is certified that a woman is expected to be confined or where she has been confined);

(b) regulation 25 (interchange with claims for other benefits);

(c) regulation 37 (evidence and information in connection with a claim);

(d) regulation 46 (direct credit transfer);

(e) regulation 47 (payment of universal credit);

(f) regulation 48 (payment of personal independence payment);

(g) regulation 49 (days for payment of personal independence payment);

(h) regulation 50(1) (payment of personal independence payment at a daily rate between periods in hospital or other accommodation);

(i) regulation 51 (payment of an employment and support allowance);

(j) regulation 52 (payment of a jobseeker’s allowance);

(k) regulation 55, except a decision under paragraph (4) (extinguishment of right to payment if payment is not obtained within the prescribed period);

(l) regulation 56 (payments on death);

(m) regulation 57 (persons unable to act);

(n) regulation 58 (payment to another person on the claimant’s behalf);

(o) regulation 59 (direct payment to lender of deductions in respect of interest on secured loans);

(p) Part 6 (mobility component of personal independence payment).

Other Jobseeker’s Allowance Decisions

2.  A decision made in accordance with regulation 39(2) (jobseeker’s allowance determinations on incomplete evidence) of these Regulations.

Other Decisions relating to Universal Credit

3.  A decision in default of a nomination under regulation 21(4) (assessment periods) of the Universal Credit Regulations.

4.  A decision in default of an election under regulation 29 (award to include the carer element) of the Universal Credit Regulations.

5.  A decision as to the amount of universal credit to which a person is entitled, where it appears to the Secretary of State that the amount is determined by reference to the claimant’s entitlement to an increased amount of universal credit in the circumstances referred to in section 160C(2) (implementation of increases in universal credit due to attainment of a particular age) of the Administration Act(5).

6.  So much of a decision as adopts a decision of a rent officer under an order made by virtue of section 122 of the Housing Act 1996(6) (decisions of rent officers for the purposes of universal credit).

Suspension

7.  A decision of the Secretary of State relating to suspending payment of benefit, or to the payment of a benefit which has been suspended, under Part 5 (suspension) of these Regulations.

Decisions Depending on Other Cases

8.  A decision of the Secretary of State in accordance with section 25 or 26 of the 1998 Act (decisions and appeals depending on other cases).

Expenses

9.  A decision of the Secretary of State whether to pay travelling expenses under section 180 of the Administration Act(7).

Deductions

10.  A decision of the Secretary of State under the Fines (Deductions from Income Support) Regulations 1992(8), other than a decision whether benefit is sufficient for a deduction to be made.

11.  Any decision of the Secretary of State under the Community Charges (Deductions from Income Support) (No. 2) Regulations 1990(9), the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989(10) or the Council Tax (Deductions from Income Support) Regulations 1993(11), except a decision—

(a) whether there is an outstanding sum due of the amount sought to be deducted;

(b) whether benefit is sufficient for the deduction to be made; or

(c) on the priority of the deductions.

Loss of Benefit

12.—(1) In the circumstances referred to in sub-paragraph (2), a decision of the Secretary of State that a sanctionable benefit as defined in section 6A(1) of the Fraud Act(12) is not payable (or is to be reduced) pursuant to section 6B, 7 or 9 of that Act as a result of—

(a) a conviction for one or more benefit offences in one set of proceedings;

(b) an agreement to pay a penalty as an alternative to prosecution;

(c) a caution in respect of one or more benefit offences; or

(d) a conviction for one or more benefit offences in each of two sets of proceedings, the later offence or offences being committed within the period of 5 years after the date of any of the convictions for a benefit offence in the earlier proceedings.

(2) The circumstances are that the only ground of appeal is that any of the convictions was erroneous, or that the offender (as defined in section 6B(1) of the Fraud Act)(13) did not commit the benefit offence in respect of which there has been an agreement to pay a penalty or a caution has been accepted.

Payments on Account, Overpayments and Recovery

13.  In the case of personal independence payment, a decision of the Secretary of State under the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988(14), except a decision of the Secretary of State under the following provisions of those Regulations—

(a) regulation 5, as to the offsetting of a prior payment against a subsequent award(15);

(b) regulation 11(1), as to whether a payment in excess of entitlement has been credited to a bank or other account(16);

(c) regulation 13, as to the sums to be deducted in calculating recoverable amounts(17).

14.  A decision of the Secretary of State under the Social Security (Payments on Account of Benefit) Regulations 2013(18), except a decision under regulation 10 (bringing payments on account of benefit into account) of those Regulations.

15.  A decision of the Secretary of State under the Social Security (Overpayments and Recovery) Regulations 2013(19), except a decision of the Secretary of State under the following provisions of those Regulations—

(a) regulation 4(3), as to the person from whom an overpayment of a housing payment is recoverable;

(b) regulation 7, as to the treatment of capital to be reduced;

(c) regulation 8, as to the sums to be deducted in calculating recoverable amounts;

(d) regulation 9 (sums to be deducted: change of dwelling).

Reciprocal Agreements

16.  A decision of the Secretary of State made in accordance with an Order made under section 179 (reciprocal agreements with countries outside the United Kingdom) of the Administration Act(20).

European Community Regulations

17.  An authorisation given by the Secretary of State in accordance with Article 22(1) or 55(1) of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the European Union.

Up-rating

18.  A decision of the Secretary of State relating to the up-rating of benefits under Part 10 (review and alteration of benefits) of the Administration Act.

(1)

1983. c. 20. Section 45A was inserted by section 46 of the Crime (Sentences) Act 1997 (c.43). Section 45A was amended by paragraph 39 of Schedule 37 to the Criminal Justice Act 2003 (c.44) and sections 4 and 10 of, and paragraph 9 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007 (c.12). Section 47 was amended by section 4 of, and paragraph 10 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007, paragraphs 97 and 98 of Schedule 16 to the Armed Forces Act 2006 (c.52), paragraph 18 of Schedule 10 to the Domestic Violence, Crime and Victims Act 2004 (c.28) and Schedule 6 to the Crime (Sentences) Act 1997. S.I. 1999/672 transferred functions under sections 45A and 47 to the National Assembly for Wales.

(2)

1995 c. 46. Section 59A was inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997 (c.48) and substituted by paragraph 8(6) of Schedule 4 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

(3)

2003 asp 13.

(4)

2002 c. 16.

(5)

Section 160C was inserted by section 31 of, and paragraphs 3 and 24 of Schedule 2 to, the 2012 Act.

(6)

1996 c. 52. Section 122 was amended by section 217 of, and paragraph 60 of Schedule 7 to, the Local Government Act 2003 (c. 26), by sections 40 and 67 of, and paragraph 12 of Schedule 5 and Schedule 8 to, the 2007 Act and by sections 3, 31, 34 and 147 of, and paragraph 36 of Schedule 2, paragraph 13 of Schedule 4 and Schedule 14 to, the 2012 Act.

(7)

Relevant amendments were made to section 180 by section 41 of, and paragraphs 71 of Schedule 2 to, the Jobseekers Act 1995 (c. 18) (“the 1995 Act”), by section 33 of, and paragraph 9 of Schedule 3 to, the Social Security (Recovery of Benefits) Act 1997 (c. 27), by section 86 of, and paragraph 108 of Schedule 7 to, the 1998 Act, by section 28 of, and paragraph 10 of Schedule 3 to, the 2007 Act, and by sections 31 and 91 of, and paragraphs 3, 7 and 28 of Schedule 2 and paragraphs 7 and 28 of Schedule 9 to, the 2012 Act.

(8)

S.I. 1992/2182.

(9)

S.I. 1990/545.

(10)

S.I. 1989/507.

(11)

S.I. 1993/494.

(12)

Section 6A was inserted by section 24 of the 2009 Act. Relevant amendments were made to subsection (1) by sections 91, 117 and 147 of, and paragraphs 45 and 46 of Schedule 9 and Schedule 14 to, the 2012 Act.

(13)

Section 6B was inserted by section 24 of the 2009 Act. Section 6B was amended by section 113(8) of the 2012 Act and by the 2009 and 2012 Acts, from a date to be appointed.

(14)

S.I. 1988/664.

(15)

Relevant amending instruments are S.Is. 1999/3178, 2005/1551 2006/516, 2000/3120 and S.I. 2010/840.

(16)

Relevant amending instruments are S.I 2005/34 and S.I. 2012/757.

(17)

A relevant amending instrument is S.I. 2012/645.

(18)

S.I. 2013/383.

(19)

S.I. 2013/384.

(20)

Section 179(3) was amended by section 86 of, and paragraph 107 of Schedule 7 to, the 1998 Act, by section 41 of, and paragraph 70 of Schedule 2 to, the 1995 Act, by section 18 of, and paragraph 15 of Schedule 7 to, the Contributions Act 1999, by S.I. 1999/671, by section 14 of, and paragraphs 8 and 21 of Schedule 2 to, the 2002 Act, by section 28 of, and paragraph 10 of Schedule 3 to, the 2007 Act, and by sections 31 and 91 of, and paragraphs 7 and 27 of Schedule 9 and paragraphs 3 and 27 of Schedule 2 to, the 2012 Act. Relevant amendments were made to subsection (4) by section 86 of, and paragraph 107 of Schedule 7 to, the 1998 Act, by section 41 of, and paragraph 70 of Schedule 2 to, the 1995 Act, by section 18 of, and paragraph 15 of Schedule 7 to, the Contributions Act 1999, by section 28 of, and paragraph 10 of Schedule 3 to, the 2007 Act, and by sections 31, 91 and 147 of, and paragraphs 3 and 27 of Schedule 2, paragraphs 7 and 27 of Schedule 9 and Schedule 14 to, the 2012 Act. Relevant amendments to subsection (5) were made by section 41 of, and paragraph 70 of Schedule 2 to, the 1995 Act, by section 60 of, and Schedule 6 to, the Tax Credits Act, by section 28 of, and paragraph 10 of Schedule 3 to, the 2007 Act, by S.I. 2011/2425 and by sections 31 and 147 of, and paragraphs 3 and 27 of Schedule 2 and Schedule 14 to, the 2012 Act.