SDP backdating

Another day, another query.

I saw a client today who has been converted from Income Support to ESA(IR)

She receives MRC and as her adult son moved out 5 years ago she now lives alone and nobody claims CA for her. I have advised that she calls and gets a ESA3 form to claim her SDP from now onward.

My question is this : benefits cannot be backdated beyond a certain time, however PREMIUMS can be backdated to the start of the claim in question.
Can she therefore claim a backdate of her SDPs from income support for the previous 5 years, even though her IS has now closed following IS>ESA conversion?

I am thinking of requesting this and providing evidence that her son moved out 5 yrs ago, however due to the efficiency of my personal crystal ball I can see them refusing this request.

Am I wasting my time or do I have a shout in getting this Severe Disability Premium backdated.

Thanks folks, as always

Thought so Tony. Thanks for the reply. Client had no idea what an SDP was, so she didnt report Change of circs

I may be wrong, and I don’t find reg 6(2)(e) of the Decisions and Appeals Regulations entirely clear, but I would take reg 7(7) as meaning that you COULD have a supersession decision effective from the date the non-dependant left the household. That was clearly the intention when the regulations were introduced.

Quoting from the explanatory note that accompanied the amending regluations, it says - 

“Paragraph (3) amends regulation 7 in two ways. First, it removes the exception from the general rule for determining the effective date of a change of circumstances which is not advantageous. Secondly, it provides that where the claimant, who would otherwise be a severely disabled person, ceases to have a non-dependant, the effective date is the date the claimant ceased to have a non-dependant.”

The fact that the income support case is closed should not be a problem legally becuase the decison you are superseding is th one that awarded IS to her without the SDP in the first palce, and that is still the effective decision for that period of time

So I think there is definitely a case to pursue the SDP for the past period.

Tony Bowman - 17 October 2012 12:43 PM

6(2)(e) deals with supersessions following the awarding or increasing of a passport benefit and doesn’t apply to this circumstance.

I don’t think 7(7) helps because the starting point is that the supersession comes about due to the passport benefit. It seems to be saying that the supersession, where SDP doesn’t arise following an award of a passport benefit, because of the presence of a non-dep, the supersession only takes effect from when the non-dep leaves or is treated as not being a non-dep.

Sorry Tony, I meant 6(2)(ee).

In fact, the more I read 3(7ZA), 6(2)(ee) and 7(7), the more confused I get.

This avenue doesn’t look at relevant/passport benefit to the claimant, but “benefit” being awarded to the non dep - there is no reference to “relevant benefit”, but 3(7ZA)(d)(ii) provides that the benefit awarded to the non dep “is such that a severe disability premium becomes applicable to the claimant…..”

6(2)(ee) enables supersession where 3(7ZA) would appy but for requirement that the benefit awarded to the non dependant is for a period which includes the date on which the original award (to the SDP claimant) took effect

Why 7(7) then refers to the “relevant benefit referred to in .... 6(2)(ee) confuses me because reg 6(2)(ee) doesn’t mention “relevant benefit” , and nor does 3(7ZA).

I cannot see how a benefit that enables payment of the SDP only leads to an earlier effective date for supersession from the date on which the (SDP) claimant ceased to have non dependant living with him. If it enabled payment of the SDP (perhaps an award of RP for example, so), why is it only payable if that non dep ceased to reside with him, but looking at 7(7)(b) must then be residing with the (SDP) claimant again at the date the supersession decision would otherwise have been effective, but for 7(7)?

I must be missing a trick, but in truth, you are probably right Tony

I looked at this and thought it fairly straight forward.  Then I looked at it again, realized my mistake and thought it fairly complicated.  I then went for a lie down in a dark room.  I emerged and looked at it again, read the later posts on this topic and then went back into the dark room for another lie down.  I re-emerged, did some Pilates, had a stiff vodka and tonic and looked at it again.  I have measured my conclusion with finely engineered precision instruments and a theodolite.  It is, where a person gets ESA, etc, and his non-dep gets an award of, say, MR care effective after the date that the claimant’s ESA, etc, takes effect then the claimant can qualify for the SDP by way of supersession from the date the non-dep’s award of MR care takes effect.  It’s the bit about the non-dep leaving the house that mucks it all up.  What’s it there for?  What good is it doing?  Why are we all here?  Why are we not all over there?  Why?  Why?  For God’s sake why?

Nevip - I am pleased someone else found this a logical nightmare.

“It is, where a person gets ESA, etc, and his non-dep gets an award of, say, MR care effective after the date that the claimant’s ESA, etc, takes effect then the claimant can qualify for the SDP by way of supersession from the date the non-dep’s award of MR care takes effect.”

Even in the circumstances you described, it could not assist unless the SDP claimant has a non dependant who stops him getting the SDP at the date the supersession decsion would normally have effect (but for 7(7)!!)

Had a quick trawl through the DMG to see how it is covered there, and couldn’t find it under supersessions - maybe I need to look harder!!

Just the sort of drafting that an Upper Tribunal Judge would rip to pieces, were it to get that far

I’m sorely tempted to re-look at this but I daren’t for the sake of my sanity.  But it’s oh so tempting.  I feel like Orpheus in the Underworld.  I want to look over my shoulder to see my darling Eurydice but I know that if I do she’ll be dragged back into Hades and I’ll lose her forever.  Damn the temptation!

Look at the question from this angle?

If the claimant did not have another adult in the household or carer receiving CA at the time of the original IS claim but did have award of DLA - but no SDP was ever included in the award - arrears of SDP could be paid from the date of the original award under Reg 3(5)(a) - ‘official error’ because the claimant met the qualifying condition at that time and determination of eligability for a premium is simply a part of the caluclation of entitlement. The Secretary of State simply omitted to award the SDP at the time and that omission is an official error (and he can’t, for example, argue that if the claimant failed to notify the award of DLA on the original claim the error is the claimant’s and not his). SDP is not a seperate benefit and there is no requirement for a claimant to notify the DWP that they may be eligible - only the SofS can make that determination. In this senario the claimant is not caught by a restriction on ‘back payment’ of the SDP - SSA s9(3). In other words there is no causal link between the claimant and the failure to include SDP. Have argued this successfully many times with DWP.

However in this case the claimant wasn’t eligible for SDP at the time of award (and presumably DWP had all of the info. at the time to make that determination) because of the other adult in the household. It is not therefore possible to argue ‘official error’. A relevant change of circumstances is the adult leaving the household and it is that change that affects the entitlement to SDP. It is the claimant that is required to report relevant changes and therefore has to apply for a supersession (rather than a revision) and is caught by Reg 7. In this case there is a causal link between a failure to disclose by the claimant and failure to include SDP.

Is it possible to get around this in this specific case if it can be shown IS were never aware of the award of DLA and therefore there was an ‘official error’ from the date the adult moved out? Probably not.

But you could try blinding them with regs?

I’ve just about finished laughing at Paul’s (nevip’s) posts.

The only reason we’ve got as far as Reg 7 is that the non-dep (who had been preventing the claimant being awarded an SDP) starts to receive either AA or MRC or HRC of DLA.  And we’re looking at Reg 7 because we want to know when the supersession awarding the SDP is effective from. 
Reg 7(7)(a) answers that: it’s the date the non-dep’s AA, MRC etc commences.  However, Reg 7(7)(a) is subject to sub para (b) of 7(7). 

Sub para (b) re-introduces the presence of the non-dep (when I’d thought we were only looking at Reg 7 because he is no longer a non-dep).  But it only re-introduces him from, confusingly, the “date the superseded decision would, but for this sub paragraph (ie, sub para (b)), have had effect”.

The “superseded decision” is the one which made the “original award” of benefit to the claimant. Such decision would have had effect from the date it was made irrespective of Reg 7(7)(b) so the implication that its effective date would have somehow been different “but for” (b) is confusing.

I wonder whether 7(7)(b) means the date the supeseded decision would have “still” had effect but for (b).  However, on that interpretation, it would have still had effect until it was superseded under sub para (a) of 7(7), ie from the date the non-dep started to receive AA etc.

I think there is a drafting error and that it should actually say “but for this para”, ie para (7) of Reg 7, rather than “but for this sub para”, ie sub para (b) of 7(7).  On that basis, 7(7)(b) would then effectively say this: if at the date the claimant applies for supersession (Oct 2012) he once again has a non-dep with him (eg because the non-dep has since lost his entitlement to AA etc), the effective date of the supersession can still be the date the AA etc was awarded (eg 5 years ago).  Otherwise, the claimant could lose out on the SDP for the period in which his now non-dep was not a non-dep.  0f course, in that situation, there’d need to be a further supersession decision effective from the date the person became a non-dep again (eg, the date he lost entitlement to AA etc).

7(7)(b)’s reference to “ceased to have a non-dep or person residing with him” is actually referring I think to either (i) ceasing to have a non-dep or (ii) ceasing to have a person residing with him (ie, the equivalent of a non-dep for PC – see (bb) of Reg 7(7)(b)(ii)).  Rather than ceasing to have a non-dep residing with you.

However, even if I’m right about the drafting error, 7(7)(b) would simply clarify the operation of 7(7)(a) and hardly justify the latter being made subject to it.  I’m probably completely wrong.  And apologies Paul (nevip) if my post returns you to the vodka.

Paul (Benefits adviser) I don’t think Reg 6(2)(ee) can help your client.  But I think if his MRC was renewed at any time after the non-dep moved out, then the SDP could be backdated under Reg 6(2)(e) to the DLA renewal’s effective date. 

Also, I’d need to check but it may be possible to revise the conversion decision on the grounds that the DM did not give the claimant the opportunity to apply for IRESA when converting his IB to CESA (official error?).  The conversion process appears to look at whether there is an existing award of IS to convert, not whether there is potential entitlement to IRESA at the conversion date.  That doesn’t seem right.