Help!

I would be really glad of input on this one.

Cl claimed UC when she separated from her husband. She states that she had an SDP included in his ESA award in respect of her and she would appear to meet the criteria for having done so. She was in receipt of CA when they were a couple. She claimed UC without the ESA award ending (he is still in receipt of ESA). She is still caring for her former husband and expects this to continue.

It would appear that the UC award should include the transitional Severe Disability element at the rate for a single person without LCWRA, and the carer element, from the start of the award. This is the scenario in which she is best off.

UC however advised cl that she would get more UC if she ended the CA claim so she did this in the second AP. This advice was verbal so no record (she does not know the date and time of the call, or whether it was in person). Cl duly ended the CA claim, saying she was no longer caring 35 hours a week. When she realised the mistake, she reclaimed, stating that she had made an error and had in fact been caring continuously throughout. She also told UC this. They are ‘looking at it’.

UC has not paid the transitional SD element as their ‘technical team’ confirmed it would not be payable. We asked for an MR of this decision and cl was told it would have to go back to their technical team to be looked at again before an MR could be carried out.

Cl has been submitting fit notes and now has a WCA assessment next week. She would appear likely to be awarded LCWRA.

At this point, there is no decision on the transitional SD element and no decision on the CA.

If awarded the transitional SD element and Carer element, she would be better off by £109.59 pcm than if on the LCWRA element only as the award of the LCWRA element would erode the transitional element and replace the carer element.

What to do? I am trying to get her to phone ESA with her former husband’s ESA claim definitely did include an SDP in respect of her and she is continuing with the WCA for now.

Thoughts very gratefully received.

Sorry if this is obvious and should have been taken as read, but can you just confirm for the avoidance of doubt that your client is personally getting PIP herself?

Yes, sorry, she is, standard rate of both components.

In that case, yes should have transitional SDP element as someone who was the partner an ESA claimant with an SDP during the month before claiming UC, and who personally continued to satisfy the SDP eligibility conditions down to the first day of the UC claim.  Following comments assume LCWRA will be awarded.

If the reinstatement of the carer element is prospective from now on, it will erode the SDP element immediately and the LCWRA element will subsequently mop up what’s left of it.  If the carer element is reinstated from the outset, the LCWRA element would still eliminate the SDP element in due course, but she would have the extra £109 in the meantime.  Is it worth it, for those few months of an extra £109, to risk an MR/appeal on the basis that “I lied, but only because they told me to”?  It’s a bit awkward to say the least.

She might be better off maintaining that she actually has reduced the amount of care she provides, and has told the truth about that, but because the advice to do so was faulty she could complain, seeking the extra £109 as compensation.

She would gain nothing by way of conventional UC entitlement from a resumption of 35+ hours a week care going forward because the carer element would be swallowed up by the SDP element.  Her ex, on the other hand, gains considerably from not having a carer.

She has asked for the CA to be backdated to when it ended and UC has asked the decision maker to reinstate the carer element from when it ended. So if that succeeded she would be better off with transitional SD element and carer element than with the LCWRA element.

If CA/carer element is only reinstated with a gap then it erodes the SD element and she would be better off going forwards with the LCWRA element. I agree appealing a decision not to backdate CA/carer element to when it ended is difficult as she has no evidence of the advice she was given. It is also possible she misunderstood the advice.

At present she is continuing with the WCA. Any ideas on how to get UC to actually carry out an MR of the failure to include the transitional SD element from the start of the award as she would appear to be entitled to it? At least we could then get it in place for the first APs of the award.

Any ideas on how to get UC to actually carry out an MR of the failure to include the transitional SD element from the start of the award as she would appear to be entitled to it? At least we could then get it in place for the first APs of the award.