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Claimants already getting SDP

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Tina M
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stevejohnsontrainer - 19 March 2019 06:40 PM

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”


Steve thanks for clarifying this I will share it widely with everyone :)

Paul_Treloar_AgeUK
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We’ve been alerted to a rather serious problem with the SDP gateway for mixed-age couples that we understand DWP are currently working on to fix this pre-15 May 2019.

Say we have a couple claiming ESA with SDP in payment and on 6 July 2019,  lead partner reaches State Pension age, so their ESA claim must stop. They can’t claim Pension Credit due to mixed-age couples changes but they can’t claim Universal Credit either due to SDP gateway.

Younger partner can’t claim ESA as it’s been abolished but also can’t claim Universal Credit due to the SDP gateway.

These piece-meal ill-thought through welfare “reforms” are causing havoc and how anyone can maintain that UC is somehow simplifying the benefit system is completely beyond me.

Charles
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Paul_Treloar_AgeUK - 10 April 2019 12:46 PM

We’ve been alerted to a rather serious problem with the SDP gateway for mixed-age couples that we understand DWP are currently working on to fix this pre-15 May 2019.

Say we have a couple claiming ESA with SDP in payment and on 6 July 2019,  lead partner reaches State Pension age, so their ESA claim must stop. They can’t claim Pension Credit due to mixed-age couples changes but they can’t claim Universal Credit either due to SDP gateway.

Younger partner can’t claim ESA as it’s been abolished but also can’t claim Universal Credit due to the SDP gateway.

These piece-meal ill-thought through welfare “reforms” are causing havoc and how anyone can maintain that UC is somehow simplifying the benefit system is completely beyond me.

I believe the younger partner can claim ESA in this case. Art. 5A of the No. 9 Commencement Order (as amended by the SDP Gateway regs) allows this.


On a similar point, concerning the termination of some HB claims due to the pension credit changes, I wrote to DWP:

Art. 6 seems to apply even if a claim to UC is not possible due to receipt of SDP or due to reg. 4 of the UC(TP) Regs. This would then require claimants to reapply for HB straight after the termination. Is this correct? If yes, why is this being done?

They replied:

Thank you for raising this query. We are aware of the interaction of this policy with the SDP gateway and the possible impact on claimants. We are carefully considering the appropriate action to take for this claimant group and will make a further announcement in due course.

Your case is similar in that an ESA claim will have to be made by the younger partner, but in truth that has always been the case if they weren’t going on to PC.

[ Edited: 10 Apr 2019 at 01:07 pm by Charles ]
Paul_Treloar_AgeUK
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Thanks Charles, this really is needle in a haystack stuff isn’t it? This is going to cause chaos.

Charles
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Definitely.

I wish we could get clear confirmation about those who age into mixed-age couple status. I deal with quite a few couples claiming TC/HB who will find themselves in that situation.

zoeycorker
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i am bang in the middle of a mess here now.
I’ve tried to circumvent the system by reporting that my client who currently gets ESA with SDP has moved her partner in , to tax credits first, but they wont do anything until it has been reported to ESA and can show that SDP applies to both of them
so knowing that it wont - I am on hold to ESA in any case whilst trying to sort out a claim for UC but the gateway conditions wont let me through
arrrrgghhhhhh

unhindered by talent
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zoeycorker - 11 April 2019 10:30 AM

i am bang in the middle of a mess here now.
I’ve tried to circumvent the system by reporting that my client who currently gets ESA with SDP has moved her partner in , to tax credits first, but they wont do anything until it has been reported to ESA and can show that SDP applies to both of them
so knowing that it wont - I am on hold to ESA in any case whilst trying to sort out a claim for UC but the gateway conditions wont let me through
arrrrgghhhhhh

Try the SDP helpline if you haven’t already 0800 181 4049 - ah, ignore me, I see you’re saying that SDP won’t apply

[ Edited: 11 Apr 2019 at 10:36 am by unhindered by talent ]
zoeycorker
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thanks I phoned them anyway - they just said to say that SDP doesn.t apply in order to get round it

Charles
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zoeycorker - 11 April 2019 10:30 AM

i am bang in the middle of a mess here now.
I’ve tried to circumvent the system by reporting that my client who currently gets ESA with SDP has moved her partner in , to tax credits first, but they wont do anything until it has been reported to ESA and can show that SDP applies to both of them
so knowing that it wont - I am on hold to ESA in any case whilst trying to sort out a claim for UC but the gateway conditions wont let me through
arrrrgghhhhhh

If the ESA claim is not ending due to income/work of the partner, you could try and argue (as discussed on another thread) that even if SDP entitlement has ended they still cannot claim UC and must claim tax credits.
Alternatively, if she claims HB, you should have a few days where there is still entitlement to SDP within HB even after he moves in (a change of circs in HB only has effect from the following Monday).

Katie McColm
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HB Anorak - 25 January 2019 11:55 AM

Nobody is legally required to claim UC.  Yu can just not claim anything if that’s what you prefer and, crucially, not claiming anything means that legacy benefits can continue under the same old rules if they would have done in the old days.  Textbook case is claimant in work on partial HB who loses their job and doesn’t want to sign on … so s/he doesn’t sign on.  Do the police turn up with a warrant requiring him/her to claim UC?  Nope.  It is a serious point because a lot of people delayed claiming in anticipation of 16 January and they can now have their HB backdated a month as I explain here.

 

I was just wondering if anyone had any cases where having made a claim for Housing Benefit on or after 16/01/19 have successfully argued for backdating based on this factsheet? We have a case where we have argued this and on guidance from policy at the DWP is that this is not possible based on the fact that Reg 83(12)  of The Housing Benefit Regulations 2006 is not listed in paragraph 9 of Article 7 of the Welfare Reform Act 2012 (Commencement No. 23 and Transitional and Transitory Provisions) Order 2015. We note the wording of Reg 83 (12) changed in 2016 to refer to ‘the claim is treated as made’ on the earlier date rather than backdating.

HB Anorak
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To Katie McColm: the Council is reading Article 7 completely the wrong way round.  The provisions referred to in paras (9) and (10) are the exception to the general rule that it doesn’t matter whether a claim will be treated as made on an earlier date.  Unless one of the provisions referred to in Article 7(9) and (10) applies, the question whether an HB claim can be made is determined as at the date on which the claim is physically made and it does not matter that the claim, having been made, will then be backdated under HB Reg 83(12).

The purpose of paras (9) and (10) was to allow a defective claim to be repaired and an initial enquiry to be followed through when a postcode switched to full service in between the initiation and completion of the HB claim.  In those cases, even though the claim was not properly made until after full service commenced, it could still be treated as made on the earlier date.

The SDP gateway deals with the diametrical opposite situation: where the law has changed to allow HB claims which previously were not allowed.

Victoria Hay
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I’m hoping someone might be able to help with a situation which is the opposite of some of those in this thread (where benefit has been retrospectively awarded).

My client had his JSA stopped for failing to attend to sign on. The decision was dated 30 July, but the benefit was stopped from 8 July.

The client is getting SDP - and has an appointee acting for him.

The decision letter only suggested he might get housing help if he claimed UC. So the appointee tried to make a claim and was immediately kicked out because of the SDP question. 

They came in to see us, which took time. We put in an MR for the JSA but the obvious thing to do was to make an ESA claim (along with a new HB claim as he had just moved house and council area).

But they cannot get the ESA claim in. They won’t even let them make a claim because they say it’s been more than a month -as they are taking the date from the 8th. They suggested the client could ask for an MR, but as they won’t accept a claim or make a decision that doesn’t really work.

The most helpful person at the DWP so far has suggested his HB may have the SDP on a later date - and we’re checking that. It looks like it’s currently suspended because he they want the JSA or ESA in payment (not necessarily right but not instantly solvable either) and we’re checking when it was last considered “live”.

If we don’t get a claim in now he really will be outside the month even if it’s taken from the decision.

It feels like it should go from the decision. Firstly just seems so unreasonable if it doesn’t - the whole purpose of the rule is surely because they’ve been caught discriminating against disabled people (and this makes it easier than compensating them later). Giving someone 9 days to make a claim - when they are likely to need help anyway and have been directly to claim the wrong benefit - is not exactly compatible with that.

Plus the rule says “is, or has been within the past month, entitled”. If it just said “is entitled within the last month” it would be horribly unfair but they might be technically correct. But he clearly “has been” entitled within the last month. He was entitled on the 29th. He just isn’t now entitled on the 29th. Right ? 

I’d be happy to argue that at MR - if only we could get to that stage. I’ve tried arguing that they are welcome to turn him down as long as they let him apply. Unfortunately the rules are about who can claim not who can be paid. We can’t just give the date we think is right because they check their systems.

Any suggestions ?

Can they check HB entitlement or would they just have to take our word for that ?

[ Edited: 27 Aug 2019 at 11:16 am by Victoria Hay ]
Daphne
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If the HB is suspended you should be able to get it reinsated on a ‘nil income’ basis without the JSA or ESA in payment. Once that is sorted you have the benefit with a SDP in payment so should be no problem doing ESA claim - and yes they can check HB entitlement.

HB Anorak
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I’m not sure how easily DWP can look under the bonnet of an HB award.  Applicable amount components are harvested by the SHEBE data extract, but that is not something that DWP case workers can interrogate on an individual case basis.  They might need to use the old-fashioned method of sending an email or making a phone call.  LA staff can view the DWP CIS system, but DWP have no real time window into the Council’s system (and wouldn’t understand it even if they had).

Even though the HB is suspended, the decision awarding HB remains in force.  The requirement in Reg 4A of the UC (TP) Regs is that the claimant is “entitled to an award”, which he is unless and until the Council makes a superseding decision bringing it to an end.  They have no good reason to do that as long as the claimant plausibly assures them that he has not come into money.  So he is entitled to an award of HB that includes the SDP.

I think refusing to accept a claim requires a decision which can then be MR’d/appealed as normal.  I would rely on the very strong obiter comments in Neil Wood v Sec of State for W&P, which are concerned with refusal to supersede but it’s the same principle - Article 6 ECHR requires a right of appeal against a first-instance decision maker refusing to do something.

Victoria Hay
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HB Anorak - 27 August 2019 11:33 AM

Even though the HB is suspended, the decision awarding HB remains in force.

We’ll try that (and hope they don’t even check the HB details and just accept the date given anyway).

Daphne - 27 August 2019 11:21 AM

If the HB is suspended you should be able to get it reinsated on a ‘nil income’ basis without the JSA or ESA in payment. Once that is sorted you have the benefit with a SDP in payment so should be no problem doing ESA claim - and yes they can check HB entitlement.

I agree - but don’t think I can get that sorted by tomorrow. And I really want this lodged within a month of the DWP decision just in case there is any issue with the HB entitlement in the end.

Thank you both. This should not be this difficult.