Income Support top up to SDA pending migration to ESA and potential for backdating

I have a client who lives alone and has been in receipt of PIP since 29/9/15 with no prior award of DLA. He has been on SDA for probably over four years. Currently in receipt of £85/week. He doesn’t ever appear to have received an IS top up at any point since leaving a secure hospital and moving to a rehab unit in July 2012. He then moved to supported shouing in May 2014 and into an independant tenancy in Mar 2015.

He is in the process of being migrated onto ESA - I’m not sure of the exact date this was initiated but aprox Dec 2015. In the meantime he has continued to be paid SDA. His SDA was stopped on 25/3/16 following a decision dated 10/3/16 to close down the ESA claim for failing to attend the medical assessment. He appealed and the decision was overturned - new decision 28/4/16. His SDA was reinstated from 25/3/16 and he was offered another medical assessment date which he attended last week.

Pending the new assessment appointment I helped him claim IS to top up his SDA inluding both Disability and Severe Disabilty Premiums from the relevant dates of entitlement to each. I had been advised that when he notified the DWP of his change of address in July 2012, May 2014 and Mar 2015 an assessment of his change of circumstances should have been completed on each occasion in relation to his entitlement to relevant premiums. Their failure to do so could be grounds for a successful backdating request for a period over 3 months.

I eventually maanged to make the claim by telephone although was passed from one dept to another. He has now been refused Income Support on the grounds that he should be claiming ESA if unfit for work not IS which is the same thing that I kept being told when trying to make the claim in the first place.

He is going to very probably be placed in the support group and then will also be entitled to the EDP and SDP.  Will this be backdated to the date of submission of his ESA50 or only the medical - I am assuming the latter.  If this is the case any views as to whether I should proceed with an appeal of the IS decision including backdating for three months or longer would be very welcome.

Many thanks

jacky - 28 June 2016 03:10 PM

Will this be backdated to the date of submission of his ESA50 or only the medical - I am assuming the latter.  If this is the case any views as to whether I should proceed with an appeal of the IS decision including backdating for three months or longer would be very welcome.

Hi Jacky - had a look at this and I think he will only get ESA from the ‘effective date’ which is two to four weeks after he is notified of the conversion decision and depends on the day he is paid his SDA. (CPAG p655 sets out all the rules on this). So any extra income related money will only start then.

I initially thought no new IS claims were possible from SDA claimants since transitional protection for IS claims was finally removed in 2011. However, checking the commentary to the ESA migration regulations and IS entitlement groups (2015/16 SS Legislation p596 Volume II) suggested that a new claim for IS top up from a SDA/IB claimant is still possible pending conversion to ESA. So may be worth having a go at appealing, arguing for backdating and refer to Reg 2(2)(d) of the Employment and Support Allowance (Transitional Provisions) Regulations 2008 which as far as I can see have not been revoked and allow for new IS claims in this situation.

If not possible perhaps consider looking to pursue a complaint/maladministration for failures in DWP approach to his earlier claims.