× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Severe Disability Premium

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

Having looked at the Bible [CPAG Handbook] it doesn’t make clear when one should apply for the SDP. Just Called ESA Canterbury and they informed me they won’t backdate it to beginning of claim as Cl didn’t apply for it. At what stage should one apply for the SDP and can it be backdated 3 months.

JFSelby
forum member

Benefit caseworker (SDAIN project) - Selby CAB, North Yorkshire

Send message

Total Posts: 54

Joined: 17 May 2011

Its not usually the case that you ‘apply for’ the SDP it is normally that the information you supply shows it should apply though i have to say ESA are notoriously bad at giving people what they are entitled too, we see cases quite often where clients claim ( they beleive) for partners and dont get the award or send infomation they are on DLA and dont get the premiums

I know its covered elsewhere where they transfer from ICB to ESA and miss out also

There is an issue if while in a claim something alters that would give you the SDP ( such as DLA or PIP awards) and making sure the client does inform the relevant benefits for any possible up rating within the required time allowed when it should be fully backdated .

 

Paul_Treloar_CPAG
forum member

Advice and Rights Team, Child Poverty Action Group

Send message

Total Posts: 550

Joined: 30 June 2014

Bryan, look at page 239-240 WBH 2014-15 about backdating premiums. I think in your case, you’ll need to use reg 3(7) and 6(2)(e) of the D&A regs. I think this makes it fairly clear that a revision and thus award of the extra premium goes back to the date of the award of the qualifying benefit.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

Paul many Thanks for clearing up my stupidity. Is there anything wrong with asking for SDP on the ESA50, so at a later date if it has to be challeneged there is evidence it was asked for at he earliest opportunity?

Paul_Treloar_CPAG
forum member

Advice and Rights Team, Child Poverty Action Group

Send message

Total Posts: 550

Joined: 30 June 2014

If a qualifying benefit is already in payment at the date of claim (and provided other qualifying conditions are met), then any failure to include the SDP would be official error and thus challengeable through anytime revision anyway.

You could highlight the fact of, for example, DLA being in payment on an ESA50, but as it should have been on original ESA claim form anyway in that case, I would have expected it (SDP) to have been properly put in payment from the outset also i.e. it doesn’t need the client to have undergone a WCA or to have their LCW assessed in the first instance before SDP can be paid.

The notes above refer to situations where the qualifying benefit is awarded after the date of claim for ESA, and also allow for full backdating. Of course it makes sense to notify DWP when a qualifying benefit has been awarded, to ensure that they make adjustments promptly and pay arrears, so if that happens to coincide with an ESA50, then again there’s no harm to doing this that I can see, but it shouldn’t usually be necessary.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

So can SDP be paid in the assessment phase? No right? But after 13 weeks it can?

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

If the period of the award of the qualifying benefit includes the date from which the ESA was awarded then the decision can be revised under 3(7) and benefit increased from the start of the ESA award.  Where the period of the award of the qualifying benefit post dates the starting date of the ESA award then the ESA is superseded under 6(2)(e) and payment is increased from the date that the qualifying benefit takes effect, under 7(7).  There is no time limit in applying.

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

SDP can be paid during the assessment phase.

Is this a case where without the SDP, only contributory ESA was in payment? The DWP often seem to take the view that income-related ESA is a separate benefit that needs to be claimed at the right time. Thus, the ESA1 claim form states, below the question “Do you want to claim income-related Employment and Support Allowance?”:

If you do not claim income-related Employment
and Support Allowance now, but then ask for it
at a later date, we may only pay it from that
later date.

The consensus of previous discussions on this board has been that this is incorrect; ir-ESA is just a different aspect of the same benefit, and you don’t need to “claim backdating”, you just need to demand that the DWP give you your arrears.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

What Regs are you referring to nevip?

No the Cl is (ir)ESA. I understand the arrears bit now, just want to discover if in the ESA1 for irESA if I can ask for it then, if so how - sorry if I am being stupid here but proably cant see the wood through the trees - one of those days.

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

Decisions and Appeals Regs.

Rwkitch
forum member

Advice - Age UK, London

Send message

Total Posts: 12

Joined: 6 April 2011

Craven CAB welfare benefits - 29 July 2014 01:07 PM

The consensus of previous discussions on this board has been that this is incorrect; ir-ESA is just a different aspect of the same benefit, and you don’t need to “claim backdating”, you just need to demand that the DWP give you your arrears.

Does this help?

“...ESA is one benefit, with two forms that have different conditions of entitlement. Contributory ESA and income-related ESA are not separate benefits. It is therefore the case that any claim has to be made for ESA in general. I do not think that it is legally possible for claim to be made for contributory ESA standing alone. It is then a necessary part of the Secretary of State’s duties in considering claims to explore whether the conditions of entitlement to both contributory and income-related ESA are or are not satisfied. A claimant who objectively qualified for income-related ESA could no doubt in practice secure the result of a decision against entitlement by declining to answer questions or to provide information specifically relevant to the income-related conditions or by making it so clear that he did not wish to claim that those questions were never asked. But that is a different thing from saying that a claim can be limited to contributory ESA from the outset.”

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4240

Jon (CANY)
forum member

Welfare benefits - Craven CAB, North Yorkshire

Send message

Total Posts: 1362

Joined: 16 June 2010

Rwkitch, that does help, thank you, I haven’t seen that decision before.

But the problem is not so much winning individual appeals. It’s the old “Incap Ben vs Income Support” mindset with DWP staff, which (last I checked) has not been clearly dispelled by clear guidance in the DMG; and the consequent wrong advice that DWP give claimants, both by phone and on the claim form. This undoubtedly all leads to many sick/disabled people who will lose out on their entitlement to means-tested benefits, because they (understandably) don’t seek independent advice on what should be a simple question.


Back to Bryan’s question: in our experience, ignore what they say on the phone. If you ask for an IS10 (or an ESA3 if they haven’t done the full means-test yet), to be issued, and return it with right dates, then the correct arrears can be paid.

stevenmcavoy
forum member

Welfare rights officer - Enable Scotland

Send message

Total Posts: 869

Joined: 22 August 2013

I think quoting this to the dwp may help:

DMG para 4354:

04354 Where DMG 04350 or 04352 applies, the effective date is the first day of the period
of entitlement for which benefit 2 (or an increase to benefit 2) is awarded1. See DMG
04500 for IS and JSA2, DMG 04640 for SPC3 and DMG 04696 for ESA4. In cases where this
rule would apply but for the presence of a non-dependant the effective
date of the supersession is when the non-dependant ceased to reside with the
claimant5.
1 SS CS (D&A) Regs, reg 7(7)(a); 2 Sch 3A paras. 12 & 13; 3 Sch 3B paras. 7 & 8;
4 Sch 3C para 10; 5 reg 7(7)(b)