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SDP Gateway - entitled but not receiving an SDP - CA backdating
Yes I think “fiddly” is the word.
In your case, by the time the decision was made it had been established that your client never actually had an entitlement to the SDP at any point in time. That was the effect of the backdated CA award. However there was a brief period in which your client would have had a sort of illusory entitlement to it, because the PIP entitlement had been established but CA had not yet been claimed.
So you are walking this sort of tightrope where you are saying that, even though the SDP was not being paid, there was the appearance of an SDP entitlement between 23/03/20-04/06/20 and that is enough - and the DM should just ignore the fact that, as a result of the eventual CA award for the same, the entitlement didn’t actually arise in any legal sense.
Who knows what the FtT will do, but I don’t really see what principled argument there is as to why the effect of the CA award on the putative SDP entitlement should be ignored in this way. The decision maker in April 2021 would have been fully aware of the CA award and the effect of that award on what would otherwise have been an entitlement to the SDP is clear.
There is also the complication that entitlement to an SDP was even more illusory on the date of the HB claim because at that stage entitlement to PIP had yet to be established. If you are relying on as-yet undetermined CA entitlement as not being a barrier to an SDP gateway claim, it is somewhat audacious to argue the opposite in respect of PIP! The Tribunal can take into account circumstances down to the date of the decision and I suppose if the slightly less illusory SDP period (with PIP in place) began less than 13 weeks after the date of claim the Tribunal might be inclined to treat the claim as an advance claim which puts the date of claim after the commencement of PIP going forward. But Article 7(8)(a) of the No 23 Order (which allowed HB claims in SDP gateway cases) does not recognise “treated as made” rules, it regards the date of claim as the real life physical date of claim. On that date the claimant did not yet have a crystallised entitlement to PIP. You need to persuade the Tribunal to accept that isn’t a problem as far as PIP goes, because it was subsequently awarded for a period including the HB claim date, while overlooking that exactly the same could be said of CA. How good an advocate are you? I know some barristers who would argue that with a straight face and feign indignation at the very idea of anyone doubting it.
It might not be quite that difficult - arrears of Carers Allowance do not affect entitlement to the SDP.
It might not be quite that difficult - arrears of Carers Allowance do not affect entitlement to the SDP.
Yes that’s a very good point which I had overlooked. So e.g. para 6(6), sch 4 ESA Regs.
So I suppose you can say that is the principled reason why the eventual entitlement to PIP and CA should be treated differently. When all is said and done, there was a PIP entitlement at the date of claim and, whilst there was also a CA entitlement, it is ignored for SDP purposes so as at 02/03/20 there was an SDP entitlement although it wasn’t appreciated until the PIP claim was resolved.
Yes, excellent point. If anything it strengthens the case for as-yet undetermined PIP entitlement to satisfy the SDP gateway: if, as a general rule, arrears of benefit don’t retrospectively alter circumstances during the period covered by the arrears, there wouldn’t be any need for para 6(6).
Yes I think “fiddly” is the word.
In your case, by the time the decision was made it had been established that your client never actually had an entitlement to the SDP at any point in time. That was the effect of the backdated CA award. However there was a brief period in which your client would have had a sort of illusory entitlement to it, because the PIP entitlement had been established but CA had not yet been claimed.
So you are walking this sort of tightrope where you are saying that, even though the SDP was not being paid, there was the appearance of an SDP entitlement between 23/03/20-04/06/20 and that is enough - and the DM should just ignore the fact that, as a result of the eventual CA award for the same, the entitlement didn’t actually arise in any legal sense.
Who knows what the FtT will do, but I don’t really see what principled argument there is as to why the effect of the CA award on the putative SDP entitlement should be ignored in this way. The decision maker in April 2021 would have been fully aware of the CA award and the effect of that award on what would otherwise have been an entitlement to the SDP is clear.
But isn’t the problem with this (which the DWP legal advice reflects) that a disability premium isn’t a benefit to which s.1 SSAA 1992 applies? It’s a premium applicable to a benefit where certain conditions are met + (in theory) can be added by simple request. My initial argument would have been that there was a point in time where the SDP conditions were met while the HB claim remained to be determined. Alternatively, as I think HB Anorak suggested, treat this as an advance claim where the entitlement conditions were met later. I do see how these arguments aren’t necessarily that attractive.
Thanks Cordelia - Para 6(6) of Sch. 4 of the ESA Regs is incredibly helpful, at least because it suggests that we can now ask ESA for an SDP to be applied to his claim from January to June, and has the added benefit of not drawing the FTT into difficult legal questions. But I also think it makes the argument re: the legal position as of 02/03/20 clear, at least retrospectively. At that point in time, he was eligible for PIP including DLC, ESA, lived alone, and backdated CA for the period can be safely ignored.
[ Edited: 6 Sep 2021 at 02:35 pm by Z2KCaseworkvolunteer ]But isn’t the problem with this (which the DWP legal advice reflects) that a disability premium isn’t a benefit to which s.1 SSAA 1992 applies? It’s a premium applicable to a benefit where certain conditions are met + (in theory) can be added by simple request. My initial argument would have been that there was a point in time where the SDP conditions were met while the HB claim remained to be determined. Alternatively, as I think HB Anorak suggested, treat this as an advance claim where the entitlement conditions were met later. I do see how these arguments aren’t necessarily that attractive.
I agree that you don’t need to actually be receiving the SDP to have an “entitlement” to it. I don’t think that is really controversial. The problem as I saw it was that your client never had an entitlement to the SDP in the sense of meeting the criteria for it to be included in his ESA, because there was never a period of time during which he was entitled to PIP during which his carer was not also entitled to CA.
However as noted, my objection was very neatly answered because the effect of para 6(6) is that, when all was said and done, he did have an entitlement to the SDP at the date of claim despite his carer’s CA entitlement.