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

Backdating of Severe Disability Premium (SDP)

LauraN
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Guinness Hermitage

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Total Posts: 2

Joined: 8 January 2014

Hi,

I have just spoken to a claimant who appears to have been on DLA middle rate care for a while, probably over a year. The claimant is currently on ESA and is not getting the severe disability premium. She meets the qualifying conditions currently.

I am not clear whether the ESA start date was after the DLA award - the claimant is going to find out start dates for me.

Can the SDP be backdated to the start of her ESA claim? If she was previously on JSA do you know if it can be applied to this also?

I have looked at CPAG and it appears that there is no deadline for applying but any help would be appreciated.

On a different case I would be grateful if anyone knows whether if someone fails to notify that a non-dependant has moved out whether the SDP can be backdated to the date they left?


Thank you

[ Edited: 18 Dec 2014 at 06:35 pm by LauraN ]
Tom H
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Newcastle Welfare Rights Service

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LauraN - 18 December 2014 05:44 PM

...Can the SDP be backdated to the start of her ESA claim? If she was previously on JSA do you know if it can be applied to this also?

Scenario 1: If the DLA decision was made and DLA entitlement also commenced (not necessarily the same things) when client was on income-based JSA then it may be possible to supersede the JSA now despite there no longer being an active award of JSA.  Whilst section 10 SSA 98 provides that the decision as originally made, ie the decision originally awarding JSA, can be superseded, Reg 6(2)(e) D&A provides as follows:

“(2) A decision under section 10 may be made.. on an application made for the purpose on the basis that the decision to be superseded–

(e) is a decision where–

(i) the claimant has been awarded entitlement to a relevant benefit; and

(ii)  subsequent to the first day of the period to which that entitlement relates , the claimant..becomes entitled to another relevant benefit..” (my emphasis)

The crucial question is whether the use of “has been” in para (i) means that the entitlement, ie to JSA, should be ongoing/continuing in order for this supersession ground to apply.  If it has to be continuing then you’re obviously out of luck as JSA has ended.  I don’t think there’s any caselaw that clarifies that point.  You could simply apply for supersession of the JSA now and should it be refused, request MR/appeal and bring the test case.  If successful, the supersession would be effective under Reg 7(7)(a) D&A allowing SDP arrears in her JSA from the date DLA commenced until the date her JSA ended. However, those arrears would not necessarily carry over to ESA unless the ESA awarding decision could be revised or appealed.  It wouldn’t appear possible to make an “any time” revision, eg for official error, on the facts (we’re still in scenario 1) so her chances would depend on the ESA decision not being more than 13 months’ old.  If so, she could request a late MR under Reg 3ZA below and arguably appeal any refusal by the DM to entertain that request (see below). 

Scenario 2: If DLA entitlement commenced, as in scenario 1, before her ESA entitlement commenced but, unlike scenario1, the DLA decision was made only after the date of the ESA decision, she could ask for the ESA to be revised under Reg 3(7) D&A but again she’d be at the mercy of the DM who could refuse.  Her chances would again then depend on the ESA being less than 13 months’ old.

Scenario3: If the DLA decision and the commencement of DLA entitlement both occurred after she became entitled to ESA then there’s no problem having the ESA superseded under Regs 6(2)(e) and 7(7)(a) as above from the date DLA commenced, again with resulting SDP arrears.  Unlike scenario 1, there should be no need to have to go to tribunal for that.

MR/Appealing

Reg 3ZA D&A allows a late MR to be brought via Regs 3(1) and Reg 4 within 13 months of the date of the decision you would like reconsidered/revised.  The DM would have to decide whether your late application satisfied the criteria in Reg 4 D&A.  If he felt that it did not and refused to grant an extension of time, the live issue at present is whether s/he has still “considered” for the purpose of Reg 3ZA(2) your late application.  If s/he has, the one month appeal clock would start ticking in the normal way from the date of that unsuccessful re-consideration.  If s/he hasn’t, you would not have a right of appeal against the original decision (despite its being less than 13 months’ old) although you might have a right to appeal against the DM’s refusal to grant the extension of time under Reg 4.  Prior to the introduction of the First tier Tribunal Procedure rules caselaw had held that it was not possible to appeal a decision on an application where a regulation expressly provided that the application concerned could not be renewed.  In the present case, Reg 4(7) expressly provides that the application asking for an extension of time cannot be renewed.  It’s possible that under the new tribunal rules, “renewed” here could be construed to mean not renewed to a different DM but still capable of being renewed to a FtT.

The DWP do not accept that it has “considered” the application where the time limit is not extended and until now I’ve disagreed but, on reflection, I think they may have a point.  Their argument will be this:

(i) Reg 3ZA provides that a MR must be an “application” made under Reg 3(1) D&A.

(ii) Reg 3(1) provides that an application under it can only be made within one month or within such longer time “as may be allowed under Reg 4”, ie upto 13 months.

(iii) Because the DM has not allowed more time under Reg4, an application under 3(1) has, in effect, not been made.  And if it hasn’t been made under 3(1) there’s no MR to consider - see point (i) above.

In any event, a DM would almost certainly refuse to issue a MR notice if refusing to extend the time so you’d probably have to make an application to the tribunal for a direction/hearing to decide the preliminary issue of whether it has jurisdiction to hear any appeal.

The benefit of being able to appeal, of course, is that the ftT would stand in DM’s shoes at the date of the original ESA decision and be able to make any decision legally available to that DM.  Tribunal decision would simply “replace” the original decision (as opposed to having to revise or supersede it) which again would mean SDP arrears. 

LauraN - 18 December 2014 05:44 PM

..if someone fails to notify that a non-dependant has moved out whether the SDP can be backdated to the date they left?

Yes it can – see Regs 6(2)(e) and 7(7) mentioned earlier except, unlike above, it’s sub para (b) rather than (a) of 7(7)

Edit: sorry I’ve substantially edited the above post.  Hopefully, it’ll be clearer when client gets back to you.

[ Edited: 21 Dec 2014 at 03:07 pm by Tom H ]