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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Meaning of “separately liable to make payments to the landlord” and SDP

JojoMitchell
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Disability Law Service, London

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Total Posts: 290

Joined: 10 July 2017

Hi everyone

Just a simple one but have covid brain! 

A client is on ESA(IR), PIP & HB etc.  They moved into a 2 bed property and she has a joint tenancy with the other occupant.  ESA are not paying the SDP “as the tenancy agreement they provided clearly states that you and your acquaintance are joint tenants (not boarders or subtenants), who together are liable for the full rent (not separate payments)”.

Severe disability premium
6.—(1) The condition is that the claimant is a severely disabled person.
(2) For the purposes of sub-paragraph (1), a claimant is to be treated as being a severely disabled person if, and only if—
(a)in the case of a single claimant, a lone parent or a claimant who is treated as having no partner in consequence of sub-paragraph (3)—
(i)the claimant is in receipt of the care component;
(ii)subject to sub-paragraph (4), the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing; and
(iii)no person is entitled to, and in receipt of, a carer’s allowance under section 70 of the Contributions and Benefits Act in respect of caring for the claimant;

See also the Severe Disability Premium Decision Making:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/890632/dmgch44.pdf
Section 44127 to 32

Someone is only counted as residing with you if you share accommodation, apart from a bathroom, lavatory or a communal area such as a hall, passageway or a room in common use in sheltered accommodation.

In the same Decision Making at 44139, the following are Not non-dependents:

any person who is not a close relative (see DMG 44141) of the claimant or partner who
5.1       is liable to make payments on a commercial basis to the claimant or partner for occupation of the dwelling or
5.2       the claimant or partner is liable to make payments to on a commercial basis for the occupation of the dwelling or
5.3       is separately liable to make payments to the landlord for occupation of the dwelling

7.        a person or their partner who is not a close relative, except where 8. applies, who jointly occupies the claimant’s dwelling and who is
7.1       a co-owner of the dwelling with the claimant or partner or
7.2       jointly liable with the claimant or partner to make payments to the same landlord for the occupation of the dwelling

Any way around this? The client states that they make separate payment.

Thanks!

Va1der
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Welfare Rights Officer with SWAMP Glasgow

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Joined: 7 May 2019

This is usual DWP nonsense!

As long as you are confident that the second tenant is NOT a non dependant, the SDP should be paid.
Reg 71(4)(ii) of the ESA regs covers the situation you describe.

Now have fun convincing DWP of that…

Edit: Just to be clear - the ‘separately liable’ line from DWP is a common argument, but I can’t see that it has any basis in law - in fact the regs themselves specifically use the wording ‘JOINTLY liable’.

The part about which rooms are shared covers a slightly different scenario - not relevant to your case (see (6) of the same regs)

[ Edited: 7 Jul 2020 at 09:14 pm by Va1der ]
JojoMitchell
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Disability Law Service, London

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Total Posts: 290

Joined: 10 July 2017

Thank you! Thought I was losing my mind!!

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Just to be clear, the definition of non-dep excludes both those who are separately liable and those who are jointly liable.  Separately liable would cover housemates in an HMO, jointly liable covers your claimant.  DWP are looking at the wrong bit - they are correct that your client and the other person are not separately liable, but that’s irrelevant here.