ESA - Severe Disability Premium (SDP) backdating, and late appeal issue.

Hi there,

I have a client I have been assisting with their benefit issues. When she accessed our services, I did benefit check and identified that she was not in receipt of the Severe Disability Premium (SDP) as part of her ESA (SG) claim, she receives an element of income-based benefit as part of her applicable amount.

She was awarded the SDP backdated to 2019, although she was in receipt of a qualifying benefit (PIP) from 2016. I had several conversations with ESA helpline and eventually got to speak to someone from the processing centre. They said that the client had been sent forms back in 2016 and again in 2017 (they told us that these were ESA3 forms) but the client never completed these or returned them. Subsequently a decision maker made a decision that she could not be awarded the SDP prior to 2019. Although the IS10 form to claim, the SDP was only completed in September 2022.

I advised the person from the processing centre that my client never received any ESA3 forms in 2016 or 2017 and she did not receive any decision notification from DWP. My client has significant and enduring mental health issues, and has always accessed her local Citizens Advice for help with forms. We registered a verbal Mandatory Reconsideration when we spoke to the person from the processing centre, as they informed us that this was all they could offer. My client then contacted me to say that they have received a letter saying the MR has been unsuccessful because it was out of time (outside the 13 months’ timescale). I have submitted a formal appeal to Independent First Tier Tribunal as our argument is the close did not start ‘ticking’ until the decision was made to award the SDP. I received a judge’s direction notice, and our response has been accepted for the appeal to go ahead. My client has made a subject access request from her local Citizens Advice to get evidence of when she accessed their services for assistance with forms, whenever she has received them previously.

I just wanted to check is there any specific case law that could assist my client’s appeal.

Any assistance you could offer would be much appreciated.

Kind regards,

Patrick

The ESA3 and the IS10 are not claim forms, thyey are simply “requests” for information. Strictly speaking the SDP is never claimed and its award is just something to be determined by the decision maker as part of the overall adjudication process

ESA is a single benefit and if only the (old style)  contribution based award is in payment, the income based award will be awarded by revision/ supersession

If a decision is made not to award the SDP following an application that decision must be notified and if MR is required, that requirement must also be notified.

The award of a relevant benefit ( in this case PIP) can of itself be a ground for revision or supersession (Reg3(7) and 6(2)(e) Social Security and Child Support (Decisions and Appeals) Regs 1999 )

Hi Stainsby,

Thanks for your response. It is appreciated.

The key thing is the notification of the decision, which is the fundamental basis of our appeal.