SDP & bedroom tax for a client with a niece at uni

Our client was in receipt of ESA and HB/CTR, all with a severe disability premium, while her niece who she is responsible for, was living with her while in non advanced education. In Sept, the niece went to uni, and just returns home in the holidays. The SDP has continued to be paid with ESA, we have spoken to the DWP and they agree that this will continue as our clients niece does not ‘normally’ live at home now. The client also continues to receive a CT 25% discount as only one adult is resident in the property.
The HB/CTR claims have been revised, and the client does not have to pay the bedroom tax (2 bed housing association property) as her niece is at uni, and will not be away for more than 52 weeks. However, the SDP has been removed from the claims. When we rang the local authority today to query this, we were advised that our client was no longer entitled to the SDP on the basis that clients niece is either living with her or not, and she ‘cannot have it both ways’, ie if the SDP were awarded, she would then have the bedroom tax applied.
Our client would actually be better off with the SDP even if she paid the 14% bedroom tax, but I feel that the rules for both are different so it should be possible to ‘have it both ways’. Has anyone had any similar cases?

You say ESA has the SDP included, so sounds like claimant is on ESA(ir).  This is a passport to full HB - the SDP won’t make any difference to HB for a social sector tenant on ESA(ir).  Might affect CTR if there are protected groups who get a higher rate with SDP under local scheme rules?

As for the bedroom tax, the niece is counted as an occupier if (i) the claimant’s home is the dwelling that she normally occupies as her home and (ii) she is absent from it for less than 52 weeks at a time.  But as the Council says, it is difficult to square this with entitlement to the SDP.  You don’t get the SDP in HB if there is “non-dependant” “normally residing” wit the claimant.  Non-dependant is defined as someone who “normally resides” with the claimant.  If anything I would say “normally resides” is more durable than “occupies”, because Reg 7 limits the duration of absences so that you will no longer “occupy” the dwelling after 4/8/13/26/52 weeks (depending where you are and why), but “residing” is not similarly curtailed.  I think it is a tough argument to say the niece continues to occupy the home but does not reside there.  I think the Council have summed it up quite neatly by saying you cannot have it both ways.

But does it make any difference on the HB side?  If you have the bedroom allowed because of “occupy”, and the claimant is on ESA(ir) so premiums don’t really affect the HB calculation, how would things be improved by HB including the SDP?  All I can think of is that maybe she is under 35 (but social sector tenant so that doesn’t matter anyway??), or the local CTR scheme relies on SDP for protected rate of CTR.

Thanks, I had been so caught up in the SDP/bedroom tax debate that I missed the obvious issue that the ESA is income related! The HB award notice includes the correct amount for ESA but does not state that it is IR so I will get back to them about that. Still feel that it would be possible to meet both definitions for the SDP and bedroom tax though, but i’ll let that one go for now…