(to avoid confusion Regulation 25 is applicable to NI, Regulation 26 to Great Britain)
According to UC regulations, a claim for universal credit must be made on the first day of the period in respect of which the claim is made. But in some circumstances, it is not possible and the law provides for this possibility with Regulation 26 (Regulation 25 in NI), which allows an earlier date of claim of up to one month before the date a Universal Credit claim is actually made. This Regulation lays down exemptions, which are particularly important for ESA claimants. For example, if they are too ill to make a claim for UC on the same day that their ESA claim ceases, if the notification of expiry of entitlement to ESA is not sent to them before the date their entitlement expired, if they have a disability, etc. (see regulation 26 at the bottom of the page).
But Advice NI, a Northern Ireland’s independent advice charity, @AdviceNI, has discovered that DWP staff has routinely applied a strict rule, and disregarded this Regulation.
What it means practically is that the ESA claim may be closed, and claimants have to start afresh a new claim for UC, but also that their Work Capability decision may not be carried across from ESA, so they will have to go through the whole WCA process again, or that their UC claim may be closed if their Work Capability amount is not included in their UC assessment.
DWP’s view is that the onus is on the claimant to ask for Regulation 26 (Regulation 25 in NI) to apply, although DWP staff are aware that the claimant was previously claiming ESA, as they have to check the system, but they do not act on this information. Until this situation is remedied and until DWP staff systematically apply Regulation 26 when there is a gap between the ESA and the UC claim, claimants need to be aware of their rights and ask DWP to apply Regulation 26, in order not to lose one month of UC money and to avoid going through another WCA process and other negative repercussions.
In the words of Kevin Higgins, Head of Policy Advice NI: My interpretation of Regulation 25 is clear: it allows the Department to act on this knowledge where a range of specified circumstances exist including ‘the claimant has a disability’ which will be every claimant in circumstances involving ESA. The Department is currently not willing to adopt this position, insisting that the ‘onus is on the claimant’ and so vulnerable, sick and disabled people remain at risk of losing out on essential support.’
Beyond ESA claimants’ specific circumstances, it is hugely important that workers who contract the Coronavirus get UC from the first day of entitlement and that is where Regulation 26 comes into play
Here is the article from Advice NI, which uncovered this systemic failure and explains in more detail the relevant circumstances and the consequences of disregarding Regulation 26
Serious systemic failures affecting sick and disabled people claiming Universal Credit
Follow @AdviceNI and Kevin Higgins, Head of Policy Advice NI, @KevinHiggins27, for further updates
Time within which a claim for universal credit is to be made
26.—(1) Subject to the following provisions of this regulation, a claim for universal credit must be made on the first day of the period in respect of which the claim is made.
(2) Where the claim for universal credit is not made within the time specified in paragraph (1), the Secretary of State is to extend the time for claiming it, subject to a maximum extension of one month, to the date on which the claim is made, if—
(a)any one or more of the circumstances specified in paragraph (3) applies or has applied to the claimant; and
(b)as a result of that circumstance or those circumstances the claimant could not reasonably have been expected to make the claim earlier.
(3) The circumstances referred to in paragraph (2) are—
(a)the claimant was previously in receipt of a jobseeker’s allowance or an employment and support allowance and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant’s entitlement expired;
(b)the claimant has a disability;
(c)the claimant has supplied the Secretary of State with medical evidence that satisfies the Secretary of State that the claimant had an illness that prevented the claimant from making a claim;
(d)the claimant was unable to make a claim in writing by means of an electronic communication used in accordance with Schedule 2 because the official computer system was inoperative;
Does this reg apply to all of the UK too?
Yes it does, the only difference is that its called Reg 25 in NI and Reg 26 in the rest of the country but it is the same thing with a different number