Income Support and SDP

I have a couple who were receiving ESA(IR). Both receive DLA care middle and mob low. He is receiving Carers Allowance for looking after his wife.
Wife fails WCA therefore ESA stopped (appeal to be submitted).
I claimed Income Support as SDP is in payment.
Income Support have said that they cannot claim IS as the SDP was on the wife’s ESA claim. I pointed out the regs state differently as they were a joint claimant where a SDP was in payment.
Their counterargument is that under ESA they are not a joint claimant. He was a customer partner and as such the SDP does not belong to him so IS claim will be refused.

Help

You are most certainly correct. The important point is that a claim for UC cannot be made by this couple.

See the SDP Gateway Regs: Reg 2(3) inserts provision disallowing claims for UC by a couple EITHER OF WHOM has been entitled to an SDP. Reg 3(2)-(3) then makes amendments to allow such people to claim IS.

The corresponding guidance can be found in paras. 11-12 here.

The problem is what to do about this. If they are refusing to accept and then decide a claim, you won’t have an appealable decision, and you will have to consider other routes to escalate this.

Yes - the DWP are right in as far as its right that the couple were not ESA joint claimants and that the ESA award and SDP entitlement only ever belonged to the wife. But that misses the point because, as Charles says, the real question is whether a UC claim could be made - any UC claim would need to be a joint claim and it couldn’t be made because it would be prevented by the wife’s previous SDP entitlement.

I do think that it might be possible to appeal the refusal to deal with the claim - although it might be something which can more effectively dealt with by complaints, partnership manager, pre-action letters etc.

I think the very strong obiter section in Neil Wood v Sec of State for W&P about appealing a refusal to supersede should also extend to claims. How else, for example, would a thwarted HB claimant argue that s/he occupies specified accommodation? There surely has to be a right of appeal.

Thanks for your help and advice.

The person I spoke with at the BDC said he was a UC scholar !

I am trying to get a decision letter from HB showing the SDP in the calculation meantime.