DWP refusal of FSF payment for upfront childcare costs because claimant has not started work

Use this template if all the following apply

• your client is receiving universal credit (UC),
• your client has been offered (but not yet started) employment, and as a condition of the job offer, needs to undertake training specified by their employer,
• your client has informed their work coach of the training condition, and it has been agreed that they may attend this training,
• your client requires childcare in order to undertake the training, and
• your client does not have the money to meet upfront costs of childcare from their existing UC award and will be unable to take up the job offer if they cannot attend the training.

This letter assumes that (so can be changed)

• your client is a lone parent
• non-receipt of a FSF payment is preventing your client from accepting a firm job offer

When not to use

Do not use this letter if:

• your client has already received a FSF payment

The main legal arguments in this template are:

• DWP guidance ‘Flexible Support Fund’ (FSF) provides circumstances in which an award of FSF “must” be made, including for “childcare costs”. The guidance is clear that an FSF payment can be awarded for childcare to attend training and education or once the claimant has started work and is awaiting their first wage. It is not therefore necessary for your client to have started work in order to be awarded an FSF payment. The guidance also recognises that absence of childcare prior to starting work also represents a barrier for claimants in accepting a firm offer of employment, under “Barriers to work”. There is a public law duty to follow published policy, as demonstrated by guidance.
• FSF payments are discretionary. Restricting FSF payments to those who have already started work fetters the discretion available to the DWP to award FSF payments in line with the FSF’s purpose and in consideration of all relevant factors, including the claimant’s circumstances and that a payment would enable the claimant to take up a firm offer of employment.

Information about your client

• name
• address
• national insurance number (NINo)
• date of birth

Background facts

Such as:

• family details,
• disability, health conditions, any other vulnerability,
• details of any difficulty your client has had finding employment and how long they have been unemployed, and
• details of the employment they have been offered including salary, and the training requirement including how long the training will take, and
• what financial hardship your client is experiencing as a result of the refusal, whether they will be able to take up the employment and any risk to their being able to afford to pay for their housing, heating or food if they pay for the childcare upfront without an FSF.

Information relating to the decision

• the date, and how, your client notified DWP of their need and asked for FSF payment,
• what evidence your client provided to support their request and how this was provided, and
• how the DWP responded, including dates and exactly what was said (ideally direct quotations from your client's UC journal). 

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.

Permission to appeal to the Supreme Court was refused in R (Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482. The UC childcare costs element is therefore not available for 'upfront' childcare costs. Consider the FSF where available.