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SDP backdate and late reporting
I’m off to appeal and pulling my hair out as judge and PO simply refused to acknowledge my argument.
scenario : client claims ESA 5 years ago. On ESA3 form she states son lives with her. Whether he does or doesn’t at that point wont affect benefit.
he moves out 2 years later, 3 years ago and benefit obviously unaffected.
1 year later client claims PIP, and after 2 years waiting for tribunal gets awarded SDL PIP
so she requests an SDP, and naturally wants it backdating to start of PIP award as she lives alone and has done for 3 years.
DWP refusing backdate, as 3 years ago she didn’t tell them her son moved out . Why would she? it makes no difference?
my argument is that the relevant change of circs was the awarding of PIP, and that she has informed the relevant office of her circumstances when the change occurred when she completed the IS10 form.
DWP state its late reporting and wont budge. I’m arguing that her son moving out at the time was not a relevant change of circs as it didn’t affect her entitlement 3 years ago, and they should backdate.
Judge is leaning toward DWP argument.
ive never come across this before. They usually just backdate to start of PIP award if client states they have lived alone with no carer for the period in question.
DWP say she didn’t report a change of circs : I’m saying she didn’t have to, despite the INF4 suggesting that people should.
ideas??
No sure its the same for DWP, but for HB , the late notification rules only apply to beneficial changes , ie a change which would increase her benefit. if it reduces, or doesnt make any difference to the award, then theres no time limit re notig
ESA doesnt have any non dep chargesss and she wasn’t on PIP at the time there was nothing to report that would affect her ESA award.
I agree that the the claim needs to be reconsidered from the date PIP was awarded,
a customer olny has duty to notify changes that are likely to be relevant to the benefit being claimed. noy sure why the son moving out would be of interest to ESA unless/until PIP was awarded
See Regs 6(2)(e) and reg 7(7) The Social Security and Child Support (Decisions and Appeals) Regulations 1999 - https://www.legislation.gov.uk/uksi/1999/991/regulation/6 and https://www.legislation.gov.uk/uksi/1999/991/regulation/7
Counterintuitive because it is a supersession. There is some caselaw that articulates the last point. I’ll try and dig it out.
See bad copy and paste from a sub.
‘We would refer the Judge to O.L. v SSWP (ESA) [2018] UKUT 135 (AAC). Please see attached. 7. In which ‘The District Tribunal Judge subsequently gave permission to appeal to the Upper Tribunal in the light of the detailed arguments advanced by Mr Simon Howells, the Appellant’s representative.
He explained that: “e. Rather I accept the submission of the Appellant’s representative that it is arguable that the Appellant’s circumstances fell within reg.6(2)(e) of the regulations: he had entitlement to a ‘relevant benefit’ (ESA) from 18/09/13 (Reg.6(2)(e)(i)), and subsequently was given entitlement to another relevant benefit (PIP) from 24/10/13 (reg.6(2)(e)(ii)).
It followed that the date the supersession took effect was from the date on which entitlement to PIP arose (reg.7(7)(a)). f. Whilst arguably the Appellant’s circumstances fell within both reg.6(2)(a) and 6(2)(e), more likely the latter is to be preferred as dealing more specifically and narrowly with the Appellant’s case (paragraph 8).”
8. Judge Wikeley held in O.L. v SSWP (ESA) [2018] UKUT 135 (AAC). ‘I agree with both representatives that the Tribunal went wrong in law and so I allow the appeal and set aside the Tribunal’s decision. The Tribunal fell into the trap of thinking that supersessions of benefit decisions under regulation 6 were confined to cases where there had been a change of circumstances in general terms. But regulation 6(2) provides for a number of more specific situations’ (paragraph 13).
‘There is no point in sending this case back for re-hearing as the facts are not in dispute. I therefore re-make the Tribunal’s decision under appeal. The Secretary of State’s ESA decision of 5 November 2013 should have been superseded under regulation 6(2)(e) of the 1999 Regulations.
This was because that decision awarded the Appellant a relevant benefit (ESA) from 18 September 2013 so satisfying regulation 6(2)(e)(i). Further, the Appellant was awarded another relevant benefit (PIP) from 24 October 2013, i.e. from a date “subsequent to the first day of the period to which that entitlement relates” within the terms of regulation 6(2)(e)(ii)’ (paragraph 14).
To be honest, I had some hesitation in asking for a decision with reasons and indicating that publication might be helpful in OL because though I’d seen a couple of other instances of DWP arguing it was late reporting of a change of circs, I thought my argument was obvious and DWP intransigence not that widespread. But this does keep on coming up, so glad I did and that Judge Wikeley did decide to publish.
To be honest, I had some hesitation in asking for a decision with reasons and indicating that publication might be helpful in OL because though I’d seen a couple of other instances of DWP arguing it was late reporting of a change of circs, I thought my argument was obvious and DWP intransigence not that widespread. But this does keep on coming up, so glad I did and that Judge Wikeley did decide to publish.
Us too Simon, we lost a case citing the regs above, so we applied for permission to appeal to the UT citing your caselaw. District Judge actually revised the Ft-T decision in favour of the client disposing of the case.
Could I ask a question based on late reporting?
Client on IRESA moved from parents’ house to independent accommodation in October 2023 but only sent in the IS10 in January 2024.
DWP have only backdated SDP to the date of receipt of the IS10.
Could/should it be backdated to the date he became eligible ie. date he moved into his accommodation by himself?
Could I ask a question based on late reporting?
Client on IRESA moved from parents’ house to independent accommodation in October 2023 but only sent in the IS10 in January 2024.
DWP have only backdated SDP to the date of receipt of the IS10.
Could/should it be backdated to the date he became eligible ie. date he moved into his accommodation by himself?
Yes see above.