SDP entitlement and the normally residing rule

Good Afternoon!

I have a query from a colleague of mine that has led to some interesting debate in our office over the rules on SDP entitlement and the normally residing rule.

We have a client who is on IR-ESA and lives with their father in accommodation owned outright by their father. They are not liable for any rent payments and only have a verbal agreement to stay in the property. There are two living rooms in the home. One is occupied by the client as their bedroom so under their verbal agreement it is not part of the father’s ‘home’. The other living room is the father’s. They also share a bathroom. Our area of dispute is the kitchen. The client is currently is not allowed to access the kitchen due to their health conditions. The father places a lock on the kitchen as he is afraid of the client burning the house down or causing harm to himself.

We are currently checking the following with the client to ensure that:
The client has no access to the kitchen and the father’s living room as part of their accommodation.
Is the lock on the kitchen only there when the father isn’t at home? (Current PIP claim states it is only locked when the dad leaves the house).
Is the client allowed into the kitchen supervised?
Does the father prepare food for the client in the kitchen and does the client use the plates, cups, and cutlery from the kitchen?

According to CPAG (Welfare Benefits & Tax Credits Handbook, 25th Edition, P. 322) the rules on having someone reside with you read:

‘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 room in common use in sheltered accommodation.’   

The Disability Rights Handbook (Edition 48, P. 133) also reads:

‘Close relatives and living arrangements… Living independently? - If you have entirely separate living accommodation, you cannot be said to ‘normally reside’ with other people living under the same roof (eg if you live in a separate ‘granny flat’, your right to the SDP is not affected, even if a close relative lives under the same roof). If you are living under the same roof as other people, with a separate bedroom, kitchen and living room, you won’t count as residing with those other people so you can qualify for the SDP. It makes no difference if you share a bathroom, lavatory or communal area (which does not include any communal rooms, unless you are living in sheltered accommodation).’

Based on the above sources some of us feel that this excludes the client from an SDP award as their accommodation does include a shared kitchen (potentially also a living room), the father just chooses to lock the kitchen to ensure the client doesn’t harm themselves unsupervised. Others feel that the fact the client isn’t allowed access to the kitchen is enough to satisfy it not being part of the client’s household under the verbal agreement. 

We’re hoping to see how the DWP, specifically ESA, approach this kind of case as their DMG throws a further spanner in the works.

DMG Chapter 44: Normal amount payable & Components (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1174566/dmgch44.pdf):

‘Sharing the accommodation
44127 People should not be regarded as sharing the accommodation if

1. the only shared area is a
1.1 bathroom or
1.2 lavatory or
1.3 communal area (see DMG 44128) or

2. they are separately liable to make payments (see DMG 44129) to the landlord for that accommodation.

****Note: A person should still be regarded as sharing the kitchen even if they do not enter or use it where items for the persons use are stored there or their meals are prepared there.
1 ESA Regs, reg 71(6); R(IS) 12/96’****

It is possible in our case that although the client does not have access to the kitchen as part of their accommodation, their father prepares meals for the client out of their kitchen, under the same roof, and the client uses the plates, cups and cutlery of that same kitchen.

The problem we have is this is just DWP guidance and we cannot find any case law or precedent that states this approach is correct rather than just an interpretation of the regulation.

Does anyone have any thoughts on the above? Or has anyone had similar cases where they have had to argue a kitchen isn’t shared? We’re looking for any cases that have gone to MR or appeal that relates to this guidance.

Thank you for your time on this interesting case.

Kind regards,
Aaron