is ‘entitlement to SDP’ a material fact that needs to be disclosed

One of my client has an IS OP from a few years back. Reason was that eldest child reached 18 and client ‘failed to disclose the material fact that she was no longer entitled to severe disability premium’.

In the sparse paper work I have, it is not alleged that she failed to disclose daughter’s presence or age, and client says that she had always put daughter on claim forms, with correct age.

I would have thought that the daughter’s age and presence in mother’s household are the only relevant facts, which JCP already knew, and that entitlement to SDP is an operation of the law.

Does anyone have any case law or thoughts, either for or against?

What was the eldest child doing whilst 18/19? If they were in FT education I’d be arguing that SDP was still payable for these periods.

If they weren’t in FTE then you have a bit of an argument. DWP will be arguing that the educational status of the eldest child was a material fact and that by not telling them that the child has left education the client failed to disclose. Personally I think that this argument holds weight, and your only hope would be to have a look at the claim form/information documents the client had (or apparently had according to DWP) to try and argue that it was not clear that they had to inform the DWP when their child left education.

If the overpayment stretches past the eldest child’s 20th birthday (and there were no younger children that had turned 18 and were not in FTE) I would argue that any overpayment after that birthday did not arise because of the client’s failure to disclose, along the same lines of your argument.

A claimant cannot fail to disclose the material fact that they are no longer entitled to SDP.

Entitlement to SDP, or for example any other premium or earnings disregard or whether a person is a dependent or non-depenpendent or a couple are ‘living together’ is a conclusion of facts - not a material fact.

SDP is simply an element of calculating the applicable amount and ultimately how much benefit a person is entitled to. To reach that point a decision maker must consider a large number of facts to determine applicability of each of those elements of the applicable amount (or whatever). 

Eligibility for each element is a ‘determination’. A decision on entitlement (how much the claimant is entitled too) is composed of a large number of ‘determinations’ or building blocks. A decision is the outcome of those determinations - the ‘outcome decision’ as DWP used to call them. See Commissioner Jacobs ‘desert island’ decision [I can’t remember the citation - someone help me!] which explored in fine detail the then new process of decision making under the 98 Act and in practice what was a ‘decision’ and therefore what a claimant had a right to (or should or should not) appeal against.

So for example a claimant cannot appeal against the points score under the WCA - that is simply one of the many determination leading to a decision on entitlement to ESA (the amount of cash they are, or are not, entitled to). It is the ‘outcome’ decision that must be appealed (and now subject to MR).

Decision makers do not understand the difference between facts and conclusions of facts (or determinations and decisions) and conflate the two. Hence the basis of decisions like yours are simply nonsense (erroneous in law)

I am asssuming in your case that the reason your client is no longer entitled to SDP is because a dependent young person became a non-dependent. What DWP could argue is that your client failed to disclose the material fact that the dependent had left f/t education (as instructed in the leaflets that normally accompany awards) and therefore they did not have one of the facts neccessary to determine (as part of a supersession) that there was no longer eligibility for the SDP.

As Nevip pointed out in the thread link above it will be entertaining to see how DWP demonstrate a requirement to disclose non-entitlement to SDP under Claims and Payments Reg. 32(1A)or(1B)!

Subject to the exact circumstances of your case I would suggest that the decision that you client is no longer entitled to SDP is correct. But there was no failure to disclose (or misrepresent) so there is no recoverable overpayment.

Thanks for all your responses, this has given me something to work on.
Unfortunately, I don’t really know all the facts, the daughter turned 18 in 2007.  I am trying to get a copy of the records from JCP, but it is probably too late for that now.