5th August, 2021
Universal Credit – Upper-tier Tribunal – CSUC/280/2020
In one of my earlier bulletins I discussed the implications of a Court of Appeal case, which found in favour of Danielle Johnson and 3 other single mothers, who had fallen foul of a Universal Credit rule (Regulation 54(1), of the UC Regulations, 2013) which stipulates, when assessing a claimant’s earnings, Decision Maker’s, should take into account all “actual payments” received during the relevant Benefit Assessment Period (BAP).
The BAP, as you already know, is a fixed period, determined at the point of the initial claim for Universal Credit. For example, if someone successfully claimed UC for the first time on 23rd July 2021 their assessment period would run from the 23rd of July to 22nd August and their payment date would be 7 days later – 29th August. Once the BAP and payment date are established, it remains fixed throughout the life of the claim (including where there’s a gap of less than 26 weeks). In contrast, breaks beyond 26 weeks will cause a new BAP.
In the case of Ms Johnson and others, because their UC payment date fell on the last day of the month, wages brought forward, by their employers, due to weekends, bank holidays, Christmas etc. sometimes caused two calender monthly wages to be paid in one BAP – one legitimate, plus another caused by this administration adjustment. The Court ruled this was “perverse” way to treat the 2nd payment, as the two payments clearly related to separate salary periods, and instructed DWP to come up with a more equitable approach that would avoid this happening, in similar cases, arising in the future.
In the April 2021 case cited above, which involves another female claimant, the appellant received two 4 weekly salary payments in the BAP – 11 July 2019 to 10 August 2019. The two payments amounted to £1500 and extinguished her award. She appealed and cited the Johnson & Others case in support of her appeal. However, Judge May, of the Upper Tribunal, dismissed her appeal, on the basis, her case could be distinguished from the Johnson case, as she received 13 “4 weekly payments” and, in 11 of the 12 months, her income, from earnings, was actually assessed on a salary for 28 days, rather than a calendar month and, so, it was inevitable, that in one monthy BAP there would be two salary payments, legitimately paid, and properly considered by DWP when the claimant’s award was being assesessed.
Looking forward, if you encounter a tenant who receives two monthly wages in the one BAP and this is caused by some administrative alteration to the normal payment cycle, the Johnson & others case might enable you, one of your Welfare Rights or Financial Inclusion colleagues, to help challenge the Decision Maker’s assessment and secure an advantageous “revision” for your client. Whereas, if the tenant, is paid weekly, fortnightly or 4 weekly, there is a likelihood of, at least one BAP, maybe more, where actual earnings involve multiple payments. For example, a weekly paid claimant might, twice per year, receive 5 weekly salaries, which need to be taken into account in the assessment.
I hope this helps your understanding of this important case. If not, feel free to contact me firstname.lastname@example.org or 07733 080 389.
UC Advice & Advocacy ltd
Tel: 01698 424301 or 07733 080 389