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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

HB can it continue while on UC

Diogenes
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client get HB, has had to flee Dv to a different LA, has claimed HB in new LA, was on HB on original LA,
can the client get HB in the new LA, she is under a UC migration move and was/is in IR/ESA
cl has not yet claimed UC as there is a glitch with her existing ESA which needs sorting out, she should be on an SDP but due to a claim by someone for Carers Allowance client has lost the SDP, The CA claim is fraudulent but ESA has removed teh SDP

HB is the issue I need main help on !!!!!!!!

Prisca
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Hi

HB was in payment is LA 1
New address is in LA2 which would need a new claim for HB

New claims for HB can only be made by pension age customers, or tenants in tempoaray /supported accommodation.

does your customer fall into a group that can claim HB?

If shes in temp accommodation, then she can clai HB at LA2 and needs to advise LA1 she is tempararily absent, so that they can consioder keeping her HB claim open at the original address.

Diogenes
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Prisca
neither apply, its a move to a standard LA house, due to DV issues , assisted by women’s refuge , no at tem p address at new property, so it looks like its a claim for UC which we are trying to avoid for various reasons at present
we have had 2 extension to the claim migration deadlier for uC but i suspect we wont get another

WillH
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Can’t see how UC can be avoided.

She should ask ESA for SDP to be reinstated at least 2 days before claiming UC to ensure reg 62 UC(TP) Regs won’t be a problem (hopefully she has already done this).

However, case law isn’t helpful.
https://www.gov.uk/administrative-appeals-tribunal-decisions/secretary-of-state-for-work-and-pensions-v-gk-2023-ukut-273-aac

https://www.gov.uk/administrative-appeals-tribunal-decisions/st-v-secretary-of-state-for-work-and-pensions-2024-ukut-167-aac

It’s receipt of CA that matters, so the SDP removal likely to stand. I can see that ideally she wouldn’t claim UC until the fraudulent CA award is stopped, but that is going to leave her in rent arrears. So probably also worth a complaint to CA for not acting sooner to at least suspend CA pending investigation?

Diogenes
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Thanks WH, no one actually claims CA its only the carer element of UC that the ex partner gets, if CA was in paymnet it would be easier to call CA and explain but ESA will not do anything as UC have told them to end the SDP, as UC has not yet bene claimed we are in a jam

WillH
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I think the jam is how hard it may be to get UC to suspend the carer element for the partner (rather than when your client claims UC - still think she needs to do that sooner rather than later to avoid further rent arrears).

The important thing is to ask for ESA to be superseded (to put the SDP back) at least 2 days before she claims UC. That way, under reg 62 UC(TP) Regs, if ESA is in fact later superseded (even after it has ended), the transitional element can be recalculated.  ESA don’t have to do anything - & you can’t make them - but as long as that request for supersession has been acknowledged, your client is covered by the wording of the reg. It sounds as if she has already asked them to do it, so is already covered (though that only helps if ESA is eventually superseded). I think it’s a supersession rather than a revision because ESA can’t go back & give the client an SDP for a period when the ex did, in fact, get the carer element, even if they were not entitled to it.

Not usually an advocate of the fraud hotline but if not already contacted, I would ring them too. The issue here is that if the carer element is currently included in the partner’s UC in respect of the client, even if DWP later concluded that it had been fraud, & an overpayment, it wouldn’t allow your client to get SDP for the period (at least, not based on the case law above re ‘receipt’ of CA - same would presumably apply).

If you don’t achieve suspension or termination of the carer element by migration day (the day before your client claims UC), then you complain. In fact, I think you complain anyway, at least about any delay of UC to suspend the carer element once they’d been alerted to possible fraud. That’s why I’d go via fraud hotline if you haven’t already - I don’t know if ESA would alert UC about the fraudulent carer element claim, & I certainly wouldn’t rely on them doing that.

Diogenes
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thanks Will, she hasa called fraud dept, saysthey were noy hellful, we haveput in an MR against the stopping of the sdp as she had a letetr from uC saying it was being stopped not from ESA but from UC, even though she has yet to claim UC, it gave apepal rightd so put in an MR with detals of why the sdp should not have stopped,
we need to claimsoon I agree, hoping the sdp isue can be resolved quickly, she is still getting teh sdp until 20 11 24, I dont know why that date is relevant ,
should we get teh UC claim in NOW befoer teh sdp ends ???

WillH
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Very odd!!

I’d say that yes, she should claim UC before the SDP ends (or before UC have said it will end anyway). That’s because:

1) she needs help with the rent
2) it appears she’s getting the SDP now though it’s unclear why (if the ex is getting the carer element), so we don’t know for sure that she is entitled to it
3) she’s already asked ESA not to remove her SDP via MR, so the request to revise/supersede has gone in well before the UC claim & definitely 2 days before.

Have you compared her irESA to UC with a housing element? It’s possible there would be no transitional element anyway in this case, because perhaps indicative UC would be higher than irESA (due to the housing element). However, that isn’t always the case.

Another possible option would be to allow irESA to end & then claim UC more than a month after the deadline, but within a month of irESA stopping. That might allow her to get transitional SDP (which might be better than getting no transitional element as explained above). But that is risky because that might be after 20.11.24, and even if it isn’t, we don’t know for sure that she is ‘entitled to’ an award which includes an SDP. Also it just means even longer without help with the rent.

Diogenes
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Will Thanks
yes very odd,  the client is pretty switched on ,  just have to make sure she has done teh MR by phone and letter, I did see that the UC migration can be cancelled in some cases on request but even if we could get it cancelled HB could not be paid as its a new LA area so I think we follow the route as you have outlined above and which I think should caus eless problems,
but with the sdp its a all a bit weird why she is still getting it to 20 11 24 and why the ESA and UC wont talk to each other and accept the ex partner should not b eeligible to the UC carer element on his claim

MaggieB
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Hi, can someone please clarify.  I had assumed that if someone was receiving the Carer’s element with UC (but not actually claiming CA) then this would not prevent SDP being paid to person being cared for - in the same way as if it overlaps with another benefit.  The way I read this discussion is that I am not correct… I have looked in DRH etc but not found anything that specifically addresses this situation

Elliot Kent
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The UC carer’s element will prevent entitlement to the SDP.

In this case, Diogenes is trying to get the carer’s element of UC stopped so that their client qualifies for the SDP again before making a UC claim of their own (with an eye on transitional protection).

Tom Messere
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Getting everything sorted by Migration Day is now looking increasingly unlikely, though it was good to try if only ESA and UC had behaved :-(

While it wouldn’t have been an issue if the dodgy carer had been doing it for an IS/Ir-ESA carer’s premium, but UC carer’s element sadly hasthe same effect as receipt of CA.

But I agree there is still hope of an eventual resolution if the challenge is made - and ideally acknowledged - before Migration Day :-)

Client may have to migrate for now with no SDP in last month of Ir-ESA and thus no amount within any UC TE’
]. But if entitlement at Migration Day is retrospectively changed to and re-award SDP,  then the TE calculation could be revised, retrospectively too?

I can imagine though there is going to be some hard work - and DWP institutional resistance - to the very idea of retrospective changes to a legacy benefit claim they see as now closed and consequential revision of the UC TE sums ; but the Regs do seem to so allow.

[ Edited: 27 Nov 2024 at 12:18 am by Tom Messere ]
Diogenes
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Thanks Tom and others, yes I can see problems ahead, the client has claimed UC, may have done so a while ago as she says she has been told she will get paid in /dec, I had tried to get her to synchronise things as per teh above advice but she has gone off on her own and done stuff willy nilly , just trying to stop her applying for lCWRA as I understand that could scupper the TE payments to some degree !!!!