Large backdate of SDP while on UC

Have a client who’s been backdated 10 years of SDP entitlement amounting to around £40k.

The DWP have admitted it was their error to have not invited claimant to apply earlier.

Am I right in thinking that this should be considered official error by the DWP and therefore the capital will be disregarded indefinitely while claimant is on UC?

Thanks.

I don’t think so. The indefinite backdate was where decisions were “in error of law” as I recall and the amendment was very specifically to pick up and disregard the ESA underpayment. I doubt you could make it stick that it apply to individual blunders like this.

Edit, on a quick check of the books I can’t see that the indefinite disregard was applied to the UC capital disregards at all!

Dan Manville - 24 April 2024 03:38 PM

Edit, on a quick check of the books I can’t see that the indefinite disregard was applied to the UC capital disregards at all!

It was - see reg. 10A of the TP Regs.

Though for the present case, that doesn’t get past the problem you identify of the arrears having to be paid out as a result of official error.

Would they also get arrears of UC under Sch 2 of the TP regs 2014?

I guess it depends on the exact circumstances as it is not entirely clear exactly what happened in your case to lead to the underpayment.

One example of a fairly common situation that I believe has been accepted as being official error - Incapacity Benefit claimants who were migrated to ESA who only had their CBESA entitlement calculated and not their IRESA as well causing them to miss out on SDP/EDPs

Another example would be somebody who was only receiving CBESA, reported to the ESA department that they had been awarded PIP but were not sent an ESA3 to assess their IRESA entitlement.

An example where they might get large backdating without official error - client on ESA, is awarded PIP but does not report it to the ESA department. When they eventually do report it they could get backdating to the start of the PIP award but this would not be as a result of official error.

The client was on CB ESA and was never invited to claim IR ESA when they were placed into the SG - so the DLA award and SDP entitlement at the time was never picked up by the ESA department.

That could be fiddly.

I guess you have arrears of EDP which are definitely due to official error.

The SDP is maybe less clear cut in terms of official error, especially if the first the ESA department knew of the DLA award was when you got involved. The argument in favor of the client would be that had the ESA(IR) entitlement been correctly assessed when client was placed in the support group then they would have been prompted to report the DLA and their entitlement to SDP and this would have been added. The DWPs argument against it being official error might be that had client reported the DLA when it was awarded this would have prompted them to assess their ESA(IR) entitlement and add the SDP.

Unless the DLA was already in payment when ESA was originally claimed? In which case it would have been an official error if they only calculated their CBESA entitlement and not the IR entitlement also.