Unreasonableness of transitional SDP amount regulations

Hello all

I am currently advising a client, the circumstances are as follows:

We have just established an entitlement to the SDP on an ESA claim for a short 7 day window in January 2019, which had been previously omitted by the DWP. This SDP entitlement is between him separating from an ex-partner (which prevented SDP entitlement) and him claiming UC as a single person. I’m looking to try and get him an SDP transitional amount included in the single UC award.

Here’s the catch. He ended the single claim for UC which began in January 2019 by making a joint claim for UC with a new partner in January 2020. So I absolutely get that he won’t be entitled to carry over any transitional payment from the single to the joint claim.

However, on reading Schedule 2 of the UC (Transitional Provisions) Regulations 2014, it appears from paragraph 1(c) that he wouldn’t be able to get the transitional SDP amount because his claim for UC had ‘since terminated’ due to him becoming a member of a couple when it ‘came to the SoS’s attention’ (i.e. if we tell them now).

I think I have read this right and it seems to me utterly nonsensical. The DWP effectively get out of paying the transitional amount by overlooking things at the time that they occurred. Perhaps so wholly ‘unreasonable’ as to satisfy the criteria set out in Wednesbury? I don’t know. Forgive me if this has been discussed before. Any thoughts or experiences would be much appreciated. Schedule 2 below:

https://www.legislation.gov.uk/uksi/2014/1230/schedule/2

Many thanks in advance

Alex

This was discussed extensively at the time the Regs were made. Despite complaints, the government were insistent on legislating for it in this way (ie, requiring entitlement at the point that the one-off check was made). If I recall correctly, it was due to the administrative difficulty of identifying past claimants who were off the system already. See here for example.

As Charles notes, there were many objections at the time to the failure of the TP provision to fully compensate for lost SDP. There is both the failure to provide “full” compensation in the general case and then the lack of any compensation at all for people who were getting the SDP when they claimed it but no longer qualified for it by the time that the DWP happened to come along and look at their case.

I doubt that these provisions can be described as Wednesbury unreasonable in the sense of being outside of the range of rational responses open to the SSWP to resolve the problem. I think if there were to be a legal challenge, the argument would be that the failure to provide any compensation at all to someone in your client’s position leaves them in a situation where their ECHR rights (A1P1/A14) have been breached for the same reasons as the TP/AR claimants.

I have in the back of my mind that at one point there was going to be a JR of the compensation rules but I don’t recall what came of that. The inadequate compensation is also a feature of the Leigh Day group claim, unfortunately closed to new claimants at the moment (https://www.leighday.co.uk/our-services/employment-law-claims-and-disputes/universal-credit-group-action/)

I have only become aware recently of how the rules act against income based JSA claimants with SDP who become too ill to work. They claim UC declaring a health condition, their initial UC award includes SDPTE but if they are found to have LCWRA the SDPTE is wiped out by the LCWRA element when it is added which is, in my opinion, a fairly harsh outcome.