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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

HB claim ahead of potential SDP entitlement?

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SamW
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HAPPY NEW YEAR RIGHTSNET :) !!!!

I have a client who has just succeeded to her mum’s council tenancy. Client is on ESA (SG). She gets DLA LRC/LRM. It is probable that were she to migrate to PIP she would be awarded Daily Living but at the moment nothing has been done and she is on an indefinite award waiting for the DWPs migration process to get to her. At the moment she has no benefit being paid towards her Housing Costs.

Ideally we would try and get her onto PIP so that she can get SDP and be protected from UC migration. But the problem is that whilst she is waiting for the PIP decision (and who knows for a tribunal date following a negative decision) she will not have anything covering her rent.

One thing that I was wondering about is what would happen if she ended her DLA claim outright and made a new (non-migrated) claim for PIP. This would potentially set her date of entitlement to the SDP at the date of the start of the PIP claim (as opposed to the end of the migration process if she moved ‘naturally’ from DLA). Say if she did this and on the same date of the PIP claim tried to make a claim for HB what would happen? Would(should) she get a nil-entitlement decision that could potentially be appealed later on once the PIP was in payment and SDP entitlement established for the relevant date? Or is it not possible to even make a claim, which would mean that she could not claim HB till the PIP is actually in payment?

[edit]
Alternatively what about a situation where she ends the DLA claim, the next day makes a brand new claim for PIP and then the next day claims UC? If she then subsequently receive a decision confirming that PIP (and also SDP in the ESA) was awarded for the day before the UC claim, would this mean that she is entitled to transitional protection?

THanks!!
S

[ Edited: 7 Jan 2020 at 02:29 pm by SamW ]
Va1der
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Have you considered applying for a supersession of the DLA award? If successful, it would be effective from the date of notification.

If you stop the DLA to claim PIP you risk leaving the client without her disability benefit for months.

SamW
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Va1der - 07 January 2020 03:18 PM

Have you considered applying for a supersession of the DLA award? If successful, it would be effective from the date of notification.

If you stop the DLA to claim PIP you risk leaving the client without her disability benefit for months.

Off the top of my head this isn’t how I’ve seen my previous DLA—>PIP change in condition claims work? AFAIK the increased rate has always applied from the date of PIP award and there is no backdating (unless the initial decision is a refusal that is subsequently revised). Have had a quick look at the CPAG section on DLA-PIP migration and it suggests that DLA will continue at the same rate until the determination of the PIP claim (although there is no specific mention of changes in circs migrations apart to say that this is possible).

andyrichards
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I don’t see how what you’re proposing in the first part of your post can work.  The relevant legislation says -

“Restriction on claims for universal credit by persons entitled to a severe disability premium

4A.  No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom—
(a) is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and
(b) in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium.”
(The Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019).

In short you have to have *been awarded* the SDP in a legacy benefit (or had such an award within the preceding month).  The legislation is only designed to stop existing claimants of a legacy benefit migrating to UC.

EDIT - I can only see it working if you wait to claim HB until after SDP has been awarded (assuming that you are right about that happening).  But that does leave the person without any housing costs help in the meantime.  Not to mention the possibility that, if the SDP does not get awarded, client is forced onto UC anyway and no way to get it backdated.

[ Edited: 7 Jan 2020 at 03:46 pm by andyrichards ]
stevenmcavoy
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I have a similar case just now.

client on ESA with wrag component and middle care dla.  no sdp as lived with family. told no entitlement to pip on migration. then moves into own tenancy.

appeal started to challenge pip refusal. until now clients mum has been paying the rent as they didnt realise they could get support with this also so options are:

1.  claim uc for help with housing
2. not claim uc and if dl pip eventually awarded, get sdp and then use gateway to claim hb

2 obviously brings a risk in any scenario but im wondering if i can make a claim to hb i know will be refused but that can be reviewed later if sdp allowed and protect what could be a significant backdate.

Elliot Kent
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All of this sounds like a very dangerous game.

Your client could sit tight and wait for the PIP decision and then potentially have an SDP entitlement from 28 days after the decision which could then be the foundation of a HB claim (assuming that the gateway rules haven’t changed by then). But your client would have no way to pay the rent until that point.

So to get around that, the plan is that your client abandons their DLA award, makes a fresh claim for PIP and makes a “claim” for HB which will be rejected on current facts but perhaps arguably at least needs to be determined to the extent of whether or not it is conceptually valid. Perhaps it can then be argued that the refusal of this “pseudo-claim” is amenable to revision if and when PIP/SDP is awarded. That then gives your client a retroactively valid HB claim.

If the “pseudo-claim” argument is rejected, the PIP claim does not result in a DL award or your client is evicted for rent arrears before all this can be sorted, then her position has been significantly worsened.

The other option is just to claim UC. Housing costs will be payable, LCWRA will carry across, no commitments will be applied and her non-housing benefit will likely increase because LCWRAE > SG + EDP.

SamW
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Elliot Kent - 07 January 2020 04:33 PM

All of this sounds like a very dangerous game.

Your client could sit tight and wait for the PIP decision and then potentially have an SDP entitlement from 28 days after the decision which could then be the foundation of a HB claim (assuming that the gateway rules haven’t changed by then). But your client would have no way to pay the rent until that point.

So to get around that, the plan is that your client abandons their DLA award, makes a fresh claim for PIP and makes a “claim” for HB which will be rejected on current facts but perhaps arguably at least needs to be determined to the extent of whether or not it is conceptually valid. Perhaps it can then be argued that the refusal of this “pseudo-claim” is amenable to revision if and when PIP/SDP is awarded. That then gives your client a retroactively valid HB claim.

If the “pseudo-claim” argument is rejected, the PIP claim does not result in a DL award or your client is evicted for rent arrears before all this can be sorted, then her position has been significantly worsened.

The other option is just to claim UC. Housing costs will be payable, LCWRA will carry across, no commitments will be applied and her non-housing benefit will likely increase because LCWRAE > SG + EDP.

I think the suggestion in my edit is the one that I prefer - i.e. getting a PIP claim in before claiming UC and then assuming that claim is successful trying to argue that transitional protection should apply. Do you think that can work? I’d only be thinking of my original suggestion if there was no way to get TP for client in their UC claim.

 

 

Va1der
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SamW - 07 January 2020 03:34 PM
Va1der - 07 January 2020 03:18 PM

Have you considered applying for a supersession of the DLA award? If successful, it would be effective from the date of notification.

If you stop the DLA to claim PIP you risk leaving the client without her disability benefit for months.

Off the top of my head this isn’t how I’ve seen my previous DLA—>PIP change in condition claims work? AFAIK the increased rate has always applied from the date of PIP award and there is no backdating (unless the initial decision is a refusal that is subsequently revised). Have had a quick look at the CPAG section on DLA-PIP migration and it suggests that DLA will continue at the same rate until the determination of the PIP claim (although there is no specific mention of changes in circs migrations apart to say that this is possible).

Sorry, I may have misunderstood. From your first post I gathered that your client has yet to be asked to migrate to PIP. On that basis I don’t see why a PIP claim would be necessary at all, as a DLA claim superseded to middle rate Care would entitle your client to a SDP (and DLA would continue to be paid the current rate until a decision is made).

Other than that I’d echo what Elliot said. The complexity of the benefits system makes it tempting to try and manipulate it in our clients’ favour, but even when the legislation is on our side, there is every opportunity for DWP to make mistakes and delays which should be factored in, not to mention the stress it might cause for a client.

SamW
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Elliot Kent - 07 January 2020 04:33 PM

All of this sounds like a very dangerous game.
The other option is just to claim UC. Housing costs will be payable, LCWRA will carry across, no commitments will be applied and her non-housing benefit will likely increase because LCWRAE > SG + EDP.

Just one point on this. I’ve got UC with LWCRA as 150.93pw. ESA(SG/EDP/SDP) is 194.30pw. Obviously it needs quite specific circumstances - (clear PIP entitlement, little chance of improvement, sympathetic council/HA landlord, low weekly rent) but if ‘retrospective’ transitional protection is not possible I do think there may be cases where if all parties are in agreement the client will be better off in the long term to run up some rent arrears whilst they wait for a PIP decision.

Say for example the weekly rent is 120pw and it takes 16 weeks to decide the PIP claim and SRDL only is awarded. Client then makes HB claim. Rent arrears will be 1920. Client will receive backdated PIP and SDP of 1992.80 which they can immediately use to pay off the rent arrears. The ‘gap’ in housing costs payments of 1920 equates to 44 weeks of the gap between their entitlement on ESA compared to their entitlement on UC. So within less than a year the client will be better off, even accounting for 16 weeks of unpaid HCs. After 10 years (using the current gap between entitlements) the claimant who moved onto UC would be c.£20,000 worse off than the one that had stayed on legacy even after you take into account the 16 weeks of rent that was not covered by benefit.

Of course the weighing up of risks needs to be down to the client. In the example above the client denied PIP is 2280 worse off by delaying (the 1920 housing costs plus the 360 difference between UC and ESA(SG) without any SDP in the latter). But I think it is important to ensure that (again assuming they can’t get transitional protection) they understand how much they might be missing out on long term by moving onto UC, and that similar conversations are had with LAs/social landlords to encourage them to give their tenants some breathing space to take a course of action that will significantly improve their long term finances.

If people think that it is possible to get ‘retrospective’ TP then obviously all the above is moot :D !

Thanks for all your thoughts so far - much appreciated!

 

[ Edited: 7 Jan 2020 at 05:41 pm by SamW ]
SamW
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Va1der - 07 January 2020 04:55 PM
SamW - 07 January 2020 03:34 PM
Va1der - 07 January 2020 03:18 PM

Have you considered applying for a supersession of the DLA award? If successful, it would be effective from the date of notification.

If you stop the DLA to claim PIP you risk leaving the client without her disability benefit for months.

Off the top of my head this isn’t how I’ve seen my previous DLA—>PIP change in condition claims work? AFAIK the increased rate has always applied from the date of PIP award and there is no backdating (unless the initial decision is a refusal that is subsequently revised). Have had a quick look at the CPAG section on DLA-PIP migration and it suggests that DLA will continue at the same rate until the determination of the PIP claim (although there is no specific mention of changes in circs migrations apart to say that this is possible).

Sorry, I may have misunderstood. From your first post I gathered that your client has yet to be asked to migrate to PIP. On that basis I don’t see why a PIP claim would be necessary at all, as a DLA claim superseded to middle rate Care would entitle your client to a SDP (and DLA would continue to be paid the current rate until a decision is made).

Other than that I’d echo what Elliot said. The complexity of the benefits system makes it tempting to try and manipulate it in our clients’ favour, but even when the legislation is on our side, there is every opportunity for DWP to make mistakes and delays which should be factored in, not to mention the stress it might cause for a client.

That’s the thing though - my understanding it’s no longer possible (apart from U16s obviously and clients born before 08/04/1948 who are already in receipt of DLA) to ask for an increase in your DLA award. Any report of a deterioration in health/increase in care needs will prompt a migration to PIP, not a DLA reassessment. Happy to be corrected if I have got this wrong?

[ Edited: 7 Jan 2020 at 05:39 pm by SamW ]
Va1der
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SamW - 07 January 2020 05:33 PM

That’s the thing though - my understanding it’s no longer possible (apart from U16s obviously and clients born before 08/04/1948 who are already in receipt of DLA) to ask for an increase in your DLA award. Any report of a deterioration in health/increase in care needs will prompt a migration to PIP, not a DLA reassessment. Happy to be corrected if I have got this wrong?

Ach nein, sorry you are correct.

 

 

Liam C
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SamW - 07 January 2020 05:27 PM
Elliot Kent - 07 January 2020 04:33 PM

All of this sounds like a very dangerous game.
The other option is just to claim UC. Housing costs will be payable, LCWRA will carry across, no commitments will be applied and her non-housing benefit will likely increase because LCWRAE > SG + EDP.

If people think that it is possible to get ‘retrospective’ TP then obviously all the above is moot :D !

Thanks for all your thoughts so far - much appreciated!

Hello. Interesting discussion. If my intepretation of the regs is right then yes, retrospective TP is totally possible.

I agree that the claimant could put in a PIP claim, then claim UC, and then get an SDP transitional amount of £120pw backdated to date of UC claim if DL component is awarded.

All dates below given as examples.

15.1.2020 Claimant on ESA SG
16.1.2020 Claimant claims PIP
17.1.2020 Claimant claims UC

16.6.2020 Claimant is awarded PIP SR DL from 15.1.2020.

Now, in retrospect, the timeline looks like this:

15.1.2020 Claimant on ESA SG
16.1.2020 Claimant on PIP SR DL (Claimant entitled to SDP in ESA)
17.1.2020 Claimant claims UC (But claimant was entitled to an SDP in ESA)

Thus, claimant was entitled to an SDP in their ESA from 16/1/20, thus the SDP gateway should have applied when UC was applied for the next day. Thus, SDP Transitional Amount of £120 pcm (for LCWRA recipients) should be awarded ongoing and backdated to 17/1/20.

See schedule 2 inserted in to the Universal Credit (Transitional Provisions) Regulations 2014 by Regulation 3, Paragraph 8 of the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019.

“Determination by Secretary of State

1.  Where it comes to the attention of the Secretary of State that—

(a)an award of universal credit has been made in respect of a claimant who, within the period of one month immediately preceding the first day on which the claimant became entitled to universal credit as a consequence of making a claim, was entitled to an award of ... income-related employment and support allowance that included a severe disability premium;

(b)in a case where the award of ... income-related employment and support allowance ended during that month, the claimant continued to satisfy the conditions for eligibility for a severe disability premium for the remainder of that month;
...
the Secretary of State must determine an additional amount of universal credit (“the transitional SDP amount”) which is to be payable in respect of each assessment period that precedes that determination and then for each subsequent assessment period that begins before the conversion day.

2.  The transitional SDP amount, calculated by reference to the date of the determination, is—

(a)in the case of a single claimant—

(i)£120, if the LCWRA element is included in the award”

This option would seem to minimise risks. Though it still leaves the risk of the claimant losing disability benefits if the PIP claim is unsuccessful. And DLA will stop as soon as PIP is applied for, so even if PIP is awarded, there would be a period of waiting for backdated PIP - i think.

Liam

 

[ Edited: 8 Jan 2020 at 09:34 pm by Liam C ]
HB Anorak
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I take the points people have made about risk in these cases and claimants need to make their choice after being fully advised about the possible outcomes.  This approach is best suited to cases where you are pretty sure that PIP(dl) is a slam-dunk and it’s just a matter of time getting it awarded.

Subject to all of that, I am not convinced that HB can only be claimed where the SDP is already in place in “real time”: I don’t see a problem in making a protective HB claim, which the Council does not decide, while waiting for PIP to come through.  If the arrears of SDP encompass the date of the HB claim, I believe that retrospectively makes it possible to claim and HB can be awarded.  I appreciate that not all councils see t that way, but many do including the one I visited yesterday.  The beauty of this is that you only need the Council on side - there is no need to go anywhere near UC, just leave DWP out of it except for the PIP claim.  If the Council entertains and pends the HB claim, and plenty will, nobody else needs to know.  Of course the risk is that you don’t qualify for PIP(dl) and so you have wasted a few weeks in which you could have claimed UC.  The higher the rent available through HB/UC, the greater the risk.  But as a matter of law, I consider the “real time only” approach to be too narrow.

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HB Anorak - 09 January 2020 09:28 AM

I take the points people have made about risk in these cases and claimants need to make their choice after being fully advised about the possible outcomes.  This approach is best suited to cases where you are pretty sure that PIP(dl) is a slam-dunk and it’s just a matter of time getting it awarded.

Subject to all of that, I am not convinced that HB can only be claimed where the SDP is already in place in “real time”: I don’t see a problem in making a protective HB claim, which the Council does not decide, while waiting for PIP to come through.  If the arrears of SDP encompass the date of the HB claim, I believe that retrospectively makes it possible to claim and HB can be awarded.  I appreciate that not all councils see t that way, but many do including the one I visited yesterday.  The beauty of this is that you only need the Council on side - there is no need to go anywhere near UC, just leave DWP out of it except for the PIP claim.  If the Council entertains and pends the HB claim, and plenty will, nobody else needs to know.  Of course the risk is that you don’t qualify for PIP(dl) and so you have wasted a few weeks in which you could have claimed UC.  The higher the rent available through HB/UC, the greater the risk.  But as a matter of law, I consider the “real time only” approach to be too narrow.

if the council decide it and refuse a claim and a claimant later gets an sdp backdated to cover that date, would that decision be open to review?

HB Anorak
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I think that is a logical extension of my position, yes.  Where it gets much more difficult is if the person claims UC and then has the SDP backdated.  In that case I can see that it might be difficult to wind back the clock and they will have to settle for the consolation prize of £120 a month compo

CMILKCAB
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Hi folks don’t want to start a new thread as this is closely related.

Someone working full time. No income related benefits. Gets PIP ERDL.

Health now such that feels she will have to give up employment.

Can she claim ESA(ir) and HB on basis of simply having entitlement to the SDP…......or would she have to calim UC due to fact not in receipt of a benefit that included SDP in last month???