Backdating of severe disability premium

I have never quite figured out the relevant regs for this so hoping someone can help.

Which regs allow the backdating of a severe disability premium indefinitely as long as there is eligibility regardless of date of application as opposed to the regs which restrict backdating of pip when it is reinstated following discharge from hospital if notification is not made within a month of discharge.

Therefore the latter is treated as late notification of a change of circs but the former is not although at some point a change of circs must have occurred in order to create SDP eligibility?

I am asking now because I am dealing with a decision which refuses to backdate an SDP application on the grounds of late notification.

Which means tested benefit is the SDP going to be include in?

I thought the SDP is only payable for periods in which the qualifying benefit is in payment.

Its going to be included in ESA.  The client is in receipt of ESA and PIP.  Her daughter has been claiming Carers Allowance but recently - at the time of the application for SDP the daughter’s CA ended because she was earning too much and had been since June 2018. An overpayment decision has been made and recovery is ongoing. So effectively the daughter’s entitlement to CA ended and my client’s eligibility to SDP began in June 2018.

I’ve not seen the SDP decision yet - just had it read out over the telephone - but don’t think they have the facts right anyway i.e. they are saying that the SDP cannot be backdated from June 2018 because she should have notified the DWP at that time that the daughter’s CA had stopped.

So I can argue against that in that the daughter has only just found out she hasn’t been entitled to CA since June 2018 and therefore any earlier notification on my client’s part would not have been possible. But my understanding was that SDP claims can be backdated indefinitely anyway so even if payment of the daughter’s CA had stopped in June 2018, my client could still ask for the SDP to be backdated to that date.

I get the feeling that they are merging the lines between a straightforward SDP application and what they believe to be the daughter’s late notification of the end of her CA claim which is a completely separate matter and really nothing to do with my client.

Hope that all makes sense

Without commenting on the facts of your case, particularly the CA issue, the statutory route to unlimited backdating in DWP benefits where a qualifying benefit is awarded is s8(3) of the Social Security Act 1998 and regs’ 6(2)(e) and 7(7) of the Decisions and Appeals Regs’ 1999.

Thanks -looking through the regs and not sure they would be applied to an application for payment of SDP. Even 8(3) does not allow for unlimited backdating and I have successfully applied for years of backdated SDP for many clients. On the other hand it does appear to be applied to the reinstatement of pip following discharge from hospital. Why is one situation treated differently from the other?

Probably doesn’t add anything to what you are already considering but thinking on this… The daughter is now deemed as not entitled to CA as from June 2018 so this does not prevent payment of the SDP from that date despite her receiving payment (interpreting Shd 4 para 6 (2) (iii) ESA Regs). There has been a change of circumstances which neither the decision maker nor the claimant could have been reasonably aware of in June 2018 (i.e. the daughter not being entitled to CA, after all she is responsible for that claim, not the caree). Had they been in possession of the full facts at the time, the SDP would have been payable, so to my (albeit somewhat limited) mind, there is no reason why the SDP shouldn’t be backdated. Well worth a challenge, I feel.
Can’t find anything on late notification but I suspect that you can’t be expected to notify something that you could not have reasonably been aware of at the time (June 2018) when that decision or fact you are told you should have notified them of did not occur until much later.

Jacky Philipson - 15 October 2019 10:23 AM

Thanks -looking through the regs and not sure they would be applied to an application for payment of SDP. Even 8(3) does not allow for unlimited backdating and I have successfully applied for years of backdated SDP for many clients. On the other hand it does appear to be applied to the reinstatement of pip following discharge from hospital. Why is one situation treated differently from the other?

Ordinarily:

S8 defines a relevant benefit.  The list includes ESA and PIP.  Regulation 6(2)(e) allows for the ESA awarding decision to be superseded when, following that decision, PIP is awarded.  However, instead of the ESA superseding decision awarding the SDP taking effect from the date of the supersession application, regulation 7(7) allows it to take effect from the date that entitlement to PIP arises.

In situations where PIP payment stops (for instance periods in hospital) the legal position can be unclear.  Usually PIP is just suspended and the awarding decision is not superseded.  However, there are conflicting views on this which should not really concern us in this case.

Either way whether the PIP awarding decision is the initial one or the one which takes effect following the release from hospital, the SDP can be awarded from the date that the awarding PIP decision takes effect, no matter when the ESA supersession is requested.  If applicable, questions of payability are then a matter for a DM to calculate within the relevant period.

So that totally makes sense for most of the claims I do for SDP - so thanks - really helpful.

But just to check for this particular case -6(e)(ii) specifically refers to the claimant or family member becoming subsequently entitled to another or increase in relevant benefit. This doesn’t fit my case where it is the loss of entitlement to a relevant benefit by family member (but could be anyone) which is resulted in my client’s consequent entitlement to SDP>

Re your other point -  also then could a refusal to reinstate PIP from the date of discharge when notification is more than one month after that date be challenged on the grounds that the awarding decision has not changed - it is simply that payment has been suspended. I’m not sure the DWP are sure about which line to take since I have had different responses.

I have a client coming in this afternoon. she is appointee for her brother who succeeded a tenancy back in 2012.
SDP has only been backdated for 1 month after change of circs was notified in September 2019.
My thoughts being DWP should have known as HB./CTR awarded and also visited client and appointee when DLA transferred to PIP so should have completed a benefit check at this point.

supersession is in favour so shouldn’t have 1 month timescale. ??