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Claimants already getting SDP
What statutory provision says that SDP must actually be included in a Legacy benefit to block natural migration? The SDP Gateway regulation says ‘entitled’. That is not so far as I can see the same thing as ‘included’.
I’d agree that “entitled to” and “included” are not the same thing. But Reg 4A says “entitled to an award of an existing benefit that includes a severe disability premium”.
My interpretation is that the claimant must at least meet the basic criteria (PIP DL, no CA, etc.) and have a claim for one of the “existing benefits”. In practice the claim for PIP, HB, IS, or even PIP might not be in payment at the time - in which case everything can be tidied up later. But from a practical point of view, the decision at the time of the UC application must be based on the facts as they appear to be at that time. If they turn out later to have been different then it would be appropriate to revise them later.
So if somebody is getting ESA and is waiting for a PIP decision, and claims UC today (for housing costs), this appears to be correct. If, next month, they finally get the PIP decision awarding them DL, and they meet the other SDP criteria, then the SDP ESA can be revised back to the start of the PIP claim - which has the effect that when they applied for UC they were, in fact, getting ESA with an SDP, and so they couldn’t claim UC. It can all be undone, and they can claim HB now.
Where I’m slightly uneasy, is with what actually happens when these decisions are tidied up later. I think it’s more complicated than with legacy benefits (where a revision which brought an ESA award back to life wouldn’t actually make the interim JSA award wrong). I would argue that in the above example, the correct decision is that the decision to award UC was wrong; so anything paid in UC was an overpayment (a recoverable one). If the claimant didn’t make a claim for HB at the same time as the UC claim, then they’re stuck with the one month backdate limit, and a UC OP. Some of the OP can be deducted from the ESA underpayment. But what about housing costs? Obviously the claimant has a good case for arguing the DWP should exercise its discretion not to recover the UC housing costs, but what if the claimant then goes over to UC in a couple of years and the OP is reactivated and recovered?
From email response recieved from UC Policy Group today…
“...The issue / question you refer to below has arisen previously and the legal advice we have had confirms that ‘a person entitled to a benefit that includes the SDP, includes a person who meet the conditions for SDP but have not yet received it’.
So, if someone is not receiving the SDP as part of their legacy benefit (e.g. Income Support, Jobseekers Allowance (income based), Employment & Support Allowance (income related) and Housing Benefit), but following a change of circumstances that requires them to make a new claim to Universal Credit (as this replaces the above benefits), it is identified during the course of dealing with this change of circumstances that the claimant should be receiving SDP, as they meet all of the qualifying conditions but for some reason this hasn’t been put into payment, then these claimants will be prevented from claiming UC by the SDP Gateway and will be able to stay on / claim a legacy benefit, and the SDP will be added to their claim. These claimants will then only be moved to UC by the DWP as part of the managed migration exercise as some point in the future and will receive transitional protection.
Thanks”
If the claimant didn’t make a claim for HB at the same time as the UC claim, then they’re stuck with the one month backdate limit, and a UC OP.
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Advise people in this situation to make a protective HB claim?
If the claimant didn’t make a claim for HB at the same time as the UC claim, then they’re stuck with the one month backdate limit, and a UC OP.
Advise people in this situation to make a protective HB claim?
That’s what I’m thinking.
If the DWP does pick up every case of SDP entitlement then that should reduce the problem, but considering the difficulty some of us have had with persuading ESA that there is such a thing as an SDP in HB, I am not confident. I’m also not sure how UC will identify SDP in cases where the claimant was only claiming HB - with no DWP legacy benefit before their UC claim. And of course, there are the ones that can’t be identified at the time they claim UC because they are still waiting for a PIP decision/appeal.
So perhaps this is something we need to consider in these prospective/apparent SDP cases - advising clients to make protective HB claims when they claim UC, or as soon as possible afterwards. Of course, they will need to insist on getting a decision from the LA - which is not necessarily going to be easy as LAs are likely to be turning people away rather than accepting claims and then making a decision on them.
[ Edited: 21 Mar 2019 at 09:54 am by Timothy Seaside ]I would advocate asking the LA to entertain but not decide the HB claim: keep it pending until the SDP is cleared up at the DWP end.
I would advocate asking the LA to entertain but not decide the HB claim: keep it pending until the SDP is cleared up at the DWP end.
I think this is very sensible, and I would expect most LAs to accept and understand what is being requested. But the first point of contact for benefits in LAs is sometimes a bit more of an administrative officer who has been told there are no new claims for HB so they should send claimants to the Jobcentre (or a computer). For most of us, it won’t be a problem to get this sorted out, but nevertheless I think it’s a possible hurdle that clients may encounter.
Been a strange old week. Someone contacts me from out of area (again) because they’ve read my posts on here (!) and want to employ me privately (!) and now this.
So, in meantime, claimant on SSP due to move to contrib ESA around April. Was living on SSP and contractual sick pay. No HB or CTR. Latter because didn’t know it was an option. Former because property owned by partner who lives elsewhere. No written tenancy although commercial in all other respects so HB could be an option albeit not without difficulty. PIP awarded last week going back to November 2018. Would ordinarily have triggered SDP. After 2 hours on phone to previous very difficult client I got it in my head that this client could now get IS including SDP and thus avoid UC. Has been pointed out to me this is wholly wrong. Only option is UC. Client accepts this but wanted me to check. Sooo…
At the point the qualifying benefit was awarded they would be entitled to SDP in a legacy benefit but I guess the counter argument is that a legacy benefit wasn’t in place at the point SDP would have started. Taking the point made above “Reg 4A says “entitled to an award of an existing benefit that includes a severe disability premium”” the key may be that there wasn’t an existing benefit.
Which brings us back to “entitled” I guess. Assumption from the preceding discussion is that “entitled” in this setting means “receiving” but has anyone actually tested this?
This is how I see it…
1) SDP only exists in the context of certain Legacy benefits that may include it
2) You have to be entitled to one of these Legacy benefits for the ‘SDP Shield’ (shield from UC) to help you
3) You cannot be entitled to one of these Legacy benefits unless you have made a claim (s1 SSAA 1992)
4) In most cases you cannot make a new Legacy claim because that is the point of UC Full Service
5) In Mike’s case, unless the claimant has a suitable Legacy benefit already in place to add the SDP Shield to, it will not be available.
Steve
This is how I see it…
1) SDP only exists in the context of certain Legacy benefits that may include it
2) You have to be entitled to one of these Legacy benefits for the ‘SDP Shield’ (shield from UC) to help you
3) You cannot be entitled to one of these Legacy benefits unless you have made a claim (s1 SSAA 1992)
4) In most cases you cannot make a new Legacy claim because that is the point of UC Full Service
5) In Mike’s case, unless the claimant has a suitable Legacy benefit already in place to add the SDP Shield to, it will not be available.Steve
Yup
Which brings us back to “entitled” I guess. Assumption from the preceding discussion is that “entitled” in this setting means “receiving” but has anyone actually tested this?
I think the email Steve obtained earlier pretty conclusively shows DWP’s opinion is that you don’t have to actually be RECEIVING the SDP. However, that whole discussion is not really relevant here, as Steve says above, because a claim has not been made, so there is no ENTITLEMENT either.
A question then: would it have been possible to have made a protective claim for IS when PIP was applied for (which could have been revised on the award of the qualifying benefit) or would the fact of being in a UCFS area have precluded that altogether?
A question then: would it have been possible to have made a protective claim for IS when PIP was applied for (which could have been revised on the award of the qualifying benefit) or would the fact of being in a UCFS area have precluded that altogether?
No. I don’t think that would be possible. As a starting point, there must have been an application for a legacy benefit before the area went to UCFS.
Thanks, I thought so.