“My benefit payment rate, including disability premiums, will be protected if I have to claim universal credit”
The short answer:
That’s not the case at the moment … and you may lose out even after transitional protection rules come into force
If you have extra disability amounts that increase your current legacy benefits - the severe disability premium, enhanced disability premium, disabled child element of child tax credit, and/or disability premium - under current rules, your total payment rate may be lower if you have to move from your legacy benefits to universal credit (known as natural migration).
At the moment, there is no protection of your current benefit rates if you have to claim universal credit - which may happen because of a change in circumstances such as needing to claim for a first child or for new rental costs for the first time. Some groups of claimants may be better off on universal credit but others will receive substantially lower amounts after naturally migrating - such as some claimants who receive the severe disability premium or some families receiving additional amounts for a disabled child.
The government has introduced protection from natural migration for some claimants -
- with effect from 16 January 2019, if you are entitled to a legacy benefit that includes a severe disability premium (SDP), or have been within the last month, then you will not be able to claim universal credit. Instead, you will remain on legacy benefits until you are moved onto universal credit through the managed migration process (due to be piloted from July 2019 and started in full from November 2020);
NB - if you are getting a severe disability premium and mistakenly claim universal credit after 16 January 2019 so that your legacy benefits stop, seek advice or contact the DWP universal credit SDP team on 0800 181 4049, who should help to put you back on your legacy benefits.
- in addition, new draft managed migration pilot regulations, due to come into force by July 2019, include provision to award additional payments to people who were previously entitled to a severe disability premium and have claimed universal credit before 16 January 2019; the flat rate 'transitional SDP amount' ranges between £80 and £360 for each assessment period since the move to universal credit - although the level of these rates has been found to be unlawful in the case of R(TP, AR and SXC) v SSWP so may be subject to change. Payments will be converted into a transitional element after a date determined by the Secretary of State (paragraphs 1 to 6 of the proposed new schedule 2 to the Universal Credit (Transitional Provisions) Regulations 2014).
Tip: If you have lost out after naturally migrating to universal credit you can currently only challenge the decision by taking individual or group legal action, for example as has happened with the challenges in the case of R (TP and AR) v SSWP and R (TD, AD and IM) v SSWP.
NB: The government is planning to test its plans to move claimants from their legacy benefits to universal credit (known as managed migration) in a pilot exercise from July 2019 on up to 10,000 claimants before it starts to migrate larger numbers. Draft managed migration pilot regulations set out the detailed rules for matters including how claims are made and for transitional protection, but limit the initial number of migrated awards to 10,000 before larger numbers are moved from 2020.
The proposed scheme includes payment of an extra amount of transitional protection, in the form of a transitional element, to make up any shortfall between what a claimant was receiving from their legacy benefits and what they would receive from universal credit at the point of change. However, the amount of translational protection will be eroded over time as universal credit rates gradually increase each year, or by certain changes in circumstance.
Warning: current proposals for managed migration say that if you don't comply with the requirement to claim universal credit by your personal 'final deadline day' set by the DWP, you will lose the right to transitional protection. Seek advice if you think you will have problems claiming or have not been able to meet the claim requirements.
Law and case law:
Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 introduce the SDP 'gateway' that prevents SDP claimants from naturally migrating to universal credit.
Currently in draft form, pending parliamentary approval, the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 set out detailed provisions for managed migration and limit the process in a pilot phase to 10,000 cases.
HB Gateway: Severe Disability Premium from gov.uk sets out guidance to local authorities on the gateway preventing natural migration to universal credit.
Draft Universal Credit (Managed Migration) Regulations 2018: SSAC report and government statement from gov.uk include detailed proposals for transitional protection (the regulations have since been replaced by the draft Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019).
SSAC's questions to DWP and HMRC following meeting on 20 June 2018, and responses from gov.uk provides further details about how managed migration transitional protection rules will operate.
Universal credit full service areas: Guidance for local authorities from gov.uk sets out guidance in relation to natural migration and managed migration in universal credit full service areas.
If you need help in finding out more about your rights and the options available to you, do consider contacting a local independent advice organisation.
Enter a postcode on our advicelocal site to find details of advice organisations in your area. They will usually be able to offer free advice and support, and help to answer any questions you have.