backdating of sdp

just looking to see if someone can clarify if what I am thinking is accurate.

pension age client in receipt of dla and pgc but living with daughter with no qualifying benefit so therefore no sdp entitlement.

daughter moves out feb 2010 but sdp never included in the claim until client comes to see me recently.

sdp now added but pension service refusing to backdate.

am I right in thinking that as she has had a pgc claim open through the entire period that backdating (by way of review) should be done based on ignorance of a material fact (the fact being the client was now living alone etc etc)?

am I missing something?

Reg 6(2)(e) D&A provides:

“(2) A decision under section 10 may be made on the Secretary of State’s..own initiative or on an application made for the purpose on the basis that the decision to be superseded–

(e) is a decision where–

(i) the claimant has been awarded entitlement to a relevant benefit; and

(ii) subsequent to the first day of the period to which that entitlement relates, the claimant…becomes entitled to another relevant benefit or an increase in the rate of another relevant benefit” (my emphasis)

A supersession made under the above ground takes effect under Reg 7(7) which provides:

“(7) A decision which is superseded in accordance with regulation 6(2)(e).. shall be superseded–

(a) subject to sub-paragraph (b), from the date on which entitlement arises to the other relevant benefit referred to in regulation 6(2)(e)(ii)..or to an increase in the rate of that other relevant benefit; or

(b) where the claimant or his partner–

(i) is not a severely disabled person for the purposes of.. section 2(7) of the State Pension Credit Act (guarantee credit)...;

(ii) by virtue of his having–

(aa) n/a or

(bb) a person residing with him for the purposes of paragraph 1 of Schedule 1 to the State Pension Credit Regulations whose presence may not be ignored in accordance with paragraph 2 of that Schedule,

at the date the superseded decision would, but for this sub-paragraph, have had effect,

from the date on which the claimant or his partner ceased to have a…person residing with him or from the date on which the presence of that person was first ignored.”

The SDP appears payable then from the date the person (daughter) moved out provided, in effect, that:

(a)  The MRC or HRC of DLA (which represents “another relevant benefit” above) started after the PC (“a relevant benefit”),

(b) the daughter was still residing with the claimant when the MRC/HRC DLA was awarded, and

(c) the claimant would have been entitled to the SDP “but for” the daughter’s presence

In all other circs it seems the SDP would be payable under the normal rules, ie from the date she moved out provided notification was made within one month (extendable to 13 months with DM’s permission) of their moving out, or from the date of notification otherwise.

Edit: Reg 7(7)(b) is badly drafted but its reference to “the date the superseded decision would, but for this sub paragraph, have had effect” is a reference to the date the superseded decision would have had effect under 7(7)(a) were it not for sub para 7(7)(b), ie were it not for the fact that a person was living with the claimant at the date MRC/HRC was awarded.  If SDP would not have been payable under 7(7)(a) for any reason other than the claimant having a non-dep, eg, someone, whether living with claimant or not, being paid CA, then 7(7)(b) could not be relied on.

The above interpretation of the “the superseded decision” cannot be a reference to the original decision awarding PC, simply because no supersession could ever alter the effective date of that decision.  So the words “would, but for this sub paragraph, have had effect” would be meaningless.  So the daughter has to be resident with claimant not at the date the PC was awarded but at the date the MRC/HRC is awarded, although it doesn’t matter if she was also present when the PC was awarded.

It also doesn’t matter whether the DLA as originally awarded included MRC/HRC or whether the MRC/HRC was awarded later as a result of the DLA itself being superseded.  What matters is that the award of the MRC etc must have started after the PC was first awarded.

thanks for the replies.

I also contacted cpag Scotland re this one who helpfully pointed me in the direction of DMG para 4354:

04354 Where DMG 04350 or 04352 applies, the effective date is the first day of the period
of entitlement for which benefit 2 (or an increase to benefit 2) is awarded1. See DMG
04500 for IS and JSA2, DMG 04640 for SPC3 and DMG 04696 for ESA4. In cases where this
rule would apply but for the presence of a non-dependant the effective
date of the supersession is when the non-dependant ceased to reside with the
claimant5.
1 SS CS (D&A) Regs, reg 7(7)(a); 2 Sch 3A paras. 12 & 13; 3 Sch 3B paras. 7 & 8;
4 Sch 3C para 10; 5 reg 7(7)(b)

Tony Bowman - 02 June 2014 10:18 AM

..(if I understand the thrust of Tom’s response, it’s based on the mother not having a QB when PC was first claimed).

I hadn’t assumed there was anyone else living in the property except client and daughter.  I agree with the DMG.

oops that’s right Tony, sorry.  I’d assumed that the PC claimant was the father, don’t know why as OP states “she”.  That’ll teach me for assuming.  I suppose the old business advice applies, almost literally, here: “Assumption is the mother of all **** ups”.